SANTA  BARBARA  STATE  COLLEGE  LIBRAFT 


INTERNATIONAL  CASES 

ARBITRATIONS  AND   INCIDENTS   ILLUSTRATIVE 

OF  INTERNATIONAL  LAW  AS   PRACTISED 

BY   INDEPENDENT  STATES 

VOLUME  I 

PEA  CE 

BY  ELLERY  C.  STOWELL 

Associate  Professor  of  International  Law 
Columbia  University 

AND 

HENRY   F.  MUNRO 

Instructor  in  International  Law 
Columbia  University 


NEW  YORK 

MIFFLIN  COMPANY 
Cambrfbfjr 


COPYRIGHT,   1916,  BY  ELLERY  C.   STOWELL  AND  HENRY   F.   MUNRO 
ALL   RIGHTS   RESERVED 


tThr  JRitoersrtie  $rt«* 

CAMBRIDGE  .  MASSACHUSETTS 
U   .    S   .   A 


^       SANTA  BARBARA  STATE  COLLEGE  LIBRA* 


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V.i 


TO 
JOHN   BASSETT  MOORE 


fc 


PREFACE 

THE  primary  purpose  of  this  collection  of  international  cases  is 
to  afford  an  adequate  book  for  use  in  the  classroom.  My  own  ex- 
perience as  a  teacher  of  international  law  has  made  The  purpose  Of 
me  feel  the  need  of  such  a  book.  Many  hand-  this  collection 
books  and  systematic  treatises  have  appeared  to  set  ° 
forth  the  principles  of  the  law  of  nations,  and  one  or  the  other 
serves  as  a  basis  for  the  instruction  in  a  majority  of  the  institutions 
where  international  law  is  studied.  A  rival  system  which  seems 
more  in  accord  with  the  nature  of  the  subject  is  that  known  as  the 
case  method,  in  which  the  actual  cases  or  precedents  are  studied, 
thus  helping  the  student  by  an  inductive  method  to  arrive  at  sound 
principles.  He  learns  directly  from  the  open  book  of  history  what 
is  the  actual  practice  of  nations,  so  that  he  is  able  to  reason  out 
the  underlying  principles,  —  his  vision  is  not  limited  in  that  he 
must  look  through  the  eyes  of  one  writer.  This  method  is  more 
alive  than  any  course  based  entirely  upon  the  study  of  a  syste- 
matic text  can  hope  to  be.  But  even  the  case  method  may  be 
carried  to  an  extreme,  and  if  it  is  undoubted  that  textbook  in- 
struction can  be  vitalized  by  a  supplemental  study  of  the  cases, 
it  is  equally  true  that  the  case-book  method  may  be  strength- 
ened by  a  parallel  use  of  some  good  text.  This  latter  method  is 
the  ideal  one,  and  when  it  is  not  feasible  to  require  the  student 
to  supply  himself  with  a  good  textbook,  constant  recourse  to  the 
library  shelves  should  be  encouraged.  In  consequence,  the  ex- 
planations supplied  by  the  instructor  will  be  more  fruitful.  This 
collection  may  serve,  therefore,  either  as  the  basis  of  classroom 
study,  which  is  the  preferable  method,  or  it  may  be  employed  to 
vitalize  the  textbook  method  by  a  supplemental  supply  of  illus- 
trative cases. 

In  addition  to  the  main  purpose  of  furnishing  a  book  of  cases 
for  classroom  study,  this  collection  is  intended  to  present  a  con- 
cise account  of  some  of  the  most  important  arbitrations.  These 
international  arbitrations  are  employed  as  illustrative  cases  under 
appropriate  headings  and  are  interspersed  throughout  the  volume 


vi  PREFACE 

with  other  cases  In  which  the  procedure  of  settlement  was  differ- 
ent. The  number  and  importance  of  the  arbitrations  included  may 
be  seen  in  a  separate  list.  All  the  important  Hague  arbitrations 
relating  to  peace  are  given  in  readable  form.1  It  is  believed  that 
this  collection  is  the  only  scientific,  non-technical  account  of  these 
important  cases.  From  Professor  Moore's  monumental  and  inval- 
uable International  Arbitrations  other  important  arbitrations  have 
been  taken  textually,  when  not  of  too  great  length. 

The  special  purposes  of  the  book  in  no  way  interfere  with  its 
value  from  a  general  point  of  view.  The  material  is  of  a  nature 
to  appeal  strongly  to  all  who  take  an  intelligent  interest  in  world 
affairs.  From  its  pages  it  is  hoped  that  the  reader  may  derive  in- 
teresting information  as  to  how  nations  settle  their  differences. 
He  cannot  peruse  the  cases  and  still  cherish  those  twin  errors  of 
baneful  influence  —  that  there  is  no  international  law  and  that 
arbitration  as  now  applied  is  more  in  the  nature  of  political  com- 
promise than  a  judicial  interpretation  of  existing  law.  As  Pro- 
fessor Moore  has  pointed  out,  the  difficulty  with  arbitration  is 
neither  in  the  application  of  the  true  principles  of  international 
law  nor  in  the  enforcement  of  the  decree,  but  in  prevailing  upon 
the  parties  in  disagreement  to  have  recourse  to  arbitration.2 

1  The  Timor  Arbitration,  between  the  Netherlands  and  Portugal,  and  the  case 
of  the  Maritime  Frontier,  between  Norway  and  Sweden,  alone  are  omitted,  since 
their  interest  is  mainly  geographical  and  to  treat  them  properly  would  require  maps. 

2  Professor  J.  B.  Moore,  reviewing  Raeder's  L 'Arbitrage  international  chez  les 
Hellenes  (in  the  Political  Science  Quarterly,  vol.  31,  March,  1916)  says:  "The  author 
of  this  work  in  his  introduction  remarks  that  the  more  international  arbitration  is 
employed  the  more  reason  there  is  to  hope  that  modem  societies  will  find  in  it  the 
means  of  practically  solving  the  difficulties  that  arise  between  nations.  At  the  present 
moment  this  hope  seems  to  have  been  discredited.  It  is  just  now  the  fashion  to  speak 
of  arbitration  as  an  inadequate,  ineffective  process.  In  reality,  however,  the  popular 
disrepute  into  which  international  arbitration  has  temporarily  fallen  is  due  not  to 
dissatisfaction  with  the  results  but  to  the  refusal  or  neglect  to  resort  to  it.    Nations, 
like  individuals,  have  the  choice  between  trial  by  judges  and  'trial  by  battle';  and 
on  the  part  of  nations  the  freedom  of  choice  is  less  restrained  because  no  form  of 
organization  has  as  yet  been  found  by  which  the  physical  force  in  a  populous  and 
highly  developed  country  can  be  held  in  check  as  effectually  as  can  that  of  the  in- 
dividual in  a  populous  and  organized  community.   But  the  fact  that  nations  in  a 
particular  instance  go  to  war  may  indicate  not  that  the  dispute  was  incapable  or 
even  difficult  of  judicial  or  other  amicable  solution,  but  simply  that  one  or  both  of 
the  contestants  preferred  to  take  the  chance  of  obtaining  by  force  what  justice  could 
not  concede.  The  difficulty  was  not  in  the  nature  of  the  question  but  in  the  disposi- 
tion of  the  disputants." 


PREFACE  vii 

An  effort  has  been  made  to  confine  the  cases  of  this  volume  to 
a  discussion  of  international  law  as  such,  and  to  omit  almost  all 
cases  dealing  with  constitutional  or  administrative  The  sejecti(m 
law  relating  to  the  fulfillment  by  the  state  of  its  in-  and  preparation 
ternational  obligations.  For  example,  suits  between 
the  states  of  our  Union  are  supposed  to  be  decided  by  the  rules 
applying  to  independent  nations,  and  yet  from  the  point  of  view 
of  the  law  of  nations,  the  separate  states  of  our  Federal  Union 
are  merely  administrative  divisions  which  have  no  international 
status.  Hence,  to  include  such  cases  is  only  confusing  and  pre- 
vents the  student  from  acquiring  a  firm  grasp  of  the  principles  of 
the  subject.  Similarly,  Indian  treaties  and  the  status  of  Indians 
are  excluded  as  pertaining  to  constitutional  law.  The  practice 
of  our  administrative  authorities  and  the  decisions  of  our  courts 
applying  our  national  legislation  governing  the  rights  of  aliens  or 
the  enforcement  of  our  international  obligations  are  at  best  illus- 
trative of  what  this  country  considers  international  law.  The  value 
of  a  study  of  the  principles  of  international  law  derived  by  induc- 
tion from  such  cases  setting  forth  national  views  in  regard  to  in- 
ternational relations  will  be  vitiated  by  whatever  error  the  national 
viewpoint  enfolds.  The  true  principles  are  best  derived  from  the 
arguments  presented  before  international  arbitrators  and  weighed 
in  the  arbitral  awards,  or  else  in  the  correspondence  between 
governments  setting  forth  their  respective  views.1 

The  defect  from  which  some  collections  of  cases  suffer  by  rea- 

1  Pitt  Cobbett,  in  his  interesting  preface,  says,  in  reference  to  his  selection  of  ex- 
tracts from  decisions  by  national  courts:  "I  am  quite  aware  that  this  continual 
reference  to  case  law  as  illustrative  of  topics,  which  sometimes  seem  scarcely  to 
come  within  the  domain  of  the  courts,  may  occasionally  appear  strained  and  awk- 
ward. Thus,  the  insertion  of  the  case  of  the  Cherokee  Nation  v.  the  State  of  Georgia, 
as  an  authority  on  the  subject  of  state  character,  of  the  cases  of  the  Eliza  Ann  and 
the  Teutonia  on  the  subject  of  'Declaration  of  War,'  may  seem  to  give  an  untrue 
idea  of  the  real  origin  and  foundation  of  the  rules  of  international  law  on  these  sub- 
jects. My  purpose,  however,  was  not  so  much  to  indicate  the  origin  of  such  rules, 
as  to  show  how  far  they  were  sanctioned  by  the  decisions  of  recognized  legal  au- 
thorities." (Pitt  Cobbett,  Leading  Cases  and  Opinions  on  International  Law  [London, 
1885],  P-  vL). 

The  purpose  which  Pitt  Cobbett  had  in  1885  is  so  well  recognized  in  1916  that  it 
would  seem  to  justify  at  this  time  a  more  scientific  basis  for  the  selection  of  cases. 
Mr.  Cobbett 's  third  edition  (1909)  of  his  valued  work  bears  testimony  to  the  truth 
of  this  statement. 


viii  PREFACE 

son  of  the  inclusion  of  much  material  which  is  not  international 
law  is  almost  equaled  by  a  related  deficiency  —  the  omission  of 
all  consideration  of  some  of  the  most  important  topics  because 
they  do  not  ordinarily  come  before  the  national  courts.  Some- 
times an  attempt  to  fill  this  gap  with  judicial  rubble  has  led  to 
the  inclusion  of  an  irrelevant  obiter  dictum  of  some  learned  judge 
straying  wide  afield  of  the  case  submitted  for  his  decision.  The 
student  will  derive  a  greater  benefit  from  the  study  of  the  argu- 
ments marshaled  to  support  a  government's  views  or  action  when 
these  arguments  are  the  opinions  of  such  men  as  Jefferson,  Marcy, 
or  Gushing.  If  we  do  include  an  obiter  dictum  of  our  great  Mar- 
shall, it  must  be  because  of  its  lucid  statement  of  principle,  and 
not  because  it  comes  from  a  national  court  discoursing  on  inter- 
national law.1 

Whether  arbitral,  diplomatic,  or  judicial,  in  their  nature  the 
aim  has  been  to  select  a  few  cases  and  incidents  involving  the 
more  important  principles.  No  selection  of  cases  can  cover  all 
phases  of  international  law.  It  is  for  the  instructor  to  supplement 
the  cases  and  direct  the  student  to  other  sources  of  information. 

An  illustrative  case  which  would  possess  all  the  elements  de- 
sired as  a  basis  for  study  is  as  rare  as  a  perfectly  sound  horse. 
The  value  of  any  collection  must  depend  on  the  harmonious  com- 
bination of  cases  with  a  view  to  the  proper  emphasis  on  the  most 
important  characteristics  of  international  relations. 

The  selection  of  the  cases  hi  this  volume  from  the  mass  of 
material  and  the  hundreds  of  cases  examined  has  been  deter- 
mined by  the  effort  to  give  due  weight  to  the  relative  importance 
of  the  following  desiderata: 2 

1  In  certain  cases,  notably  of  neutrality,  national  courts  are  called  upon  to  in- 
terpret international  law,  and  many  of  these  cases  constitute  our  most  valued  pre- 
cedents. But  even  here  it  must  be  remembered  that  the  precedent  results  from  the 
fact  that  the  government  of  the  other  state  has  considered  the  decision  rendered 
sufficiently  in  accord  with  international  law  not  to  enter  a  protest  and  insist  upon 
an  adjustment  through  arbitration  or  through  the  diplomatic  channel. 

J  In  1914  a  remarkable  conference  of  teachers  of  international  law,  representing 
the  principal  institutions  of  learning,  adopted  the  following  resolution: 

"(a)  In  the  teaching  of  international  law  emphasis  should  be  laid  on  the 
positive  nature  of  the  subject  and  the  definiteness  of  the  rules. 

"Whether  we  regard  the  teaching  of  value  as  a  disciplinary  subject  or  from 
the  standpoint  of  its  importance  in  giving  to  the  student  a  grasp  of  the  rules 
that  govern  the  relations  between  nations,  it  is  important  that  he  have  im- 


PREFACE  ix 

(1)  the  most  important  arbitrations; 

(2)  the  most  important  diplomatic  incidents  discussed  between 
the  governments  of  the  principal  states; 

(3)  a  large  proportion  of  recent  material; 

(4)  cases  which  are  authoritative  and  which  have  been  im- 
portant in  the  formation  of  international  law; 

(5)  striking  cases  of  dramatic  human  interest; 

(6)  cases  sufficiently  simple  to  be  easily  comprehended,  yet 
complex  enough  to  be  representative  and  to  challenge  at- 
tention. 

In  addition,  it  has  been  necessary  to  have  regard  for  the  ap- 
portionment of  the  cases  under  the  respective  headings.   Almost 

pressed  upon  his  mind  the  definiteness  and  positive  character  of  the  rules  of 
international  law.  The  teaching  of  international  law  should  not  be  made  the 
occasion  for  a  universal  peace  propaganda.  The  interest  of  students  and  their 
enthusiasm  for  the  subject  can  best  be  aroused  by  impressing  upon  them  the 
evolutionary  character  of  the  rules  of  international  law.  Through  such  a  pres- 
entation of  the  subject  the  student  will  not  fail  to  see  how  the  development  of 
positive  rules  of  law  governing  the  relations  between  states  has  contributed 
towards  the  maintenance  of  peace. 

"(&)  In  order  to  emphasize  the  positive  character  of  international  law,  the 
widest  possible  use  should  be  made  of  cases  and  concrete  facts  in  international 
experience. 

"The  interest  of  students  can  best  be  aroused  when  they  are  convinced  that 
they  are  dealing  with  the  concrete  facts  of  international  experience.  The  mar- 
shaling of  such  facts  in  such  a  way  as  to  develop  or  illustrate  general  principles 
lends  a  dignity  to  the  subject  which  cannot  help  but  have  a  stimulating  in- 
fluence. 

"Hence,  international  law  should  be  constantly  illustrated  from  those  sources 
which  are  recognized  as  ultimate  authority,  such  as:  (a)  cases,  both  of  judicial 
and  arbitral  determination;  (i)  treaties,  protocols,  acts,  and  declarations  of 
epoch-making  congresses,  such  as  Westphalia  (1648),  Vienna  (1815),  Paris 
(1856),  The  Hague  (1809  and  1907),  and  London  (1909);  (c)  diplomatic  incidents 
ranking  as  precedents  for  action  of  an  international  character;  (d)  the  great 
classics  of  international  law. 

"(c)  In  the  teaching  of  international  law  care  should  be  exercised  to  dis- 
tinguish the  accepted  rules  of  international  law  from  questions  of  international 
policy. 

"This  is  particularly  true  of  the  teaching  of  international  law  in  American 
institutions.  There  is  a  tendency  to  treat  as  rules  of  international  law  certain 
principles  of  American  foreign  policy.  It  is  important  that  the  line  of  division 
be  dearly  appreciated  by  the  student.  Courses  in  the  foreign  policy  of  the 
United  States  should  therefore  be  distinctly  separated  from  the  courses  in  in- 
ternational law,  and  the  principles  of  American  foreign  policy,  when  discussed 
in  courses  of  international  law,  should  always  be  tested  by  the  rules  which  have 
received  acceptance  amongst  civilized  nations. 

"  (d)  In  a  general  course  on  international  law  the  experience  of  no  one  coun- 
try should  be  allowed  to  assume  a  consequence  out  of  proportion  to  the  strictly 
international  principles  it  may  illustrate." 

This  collection  of  cases,  it  is  hoped,  will  furnish  a  basis  for  class  instruction  in 
substantial  conformity  with  the  above  resolution. 


x  PREFACE 

all  the  cases  which  have  arisen  between  states  when  under  the 
regime  of  war  or  neutrality  have  been  excluded,  so  that  those  se- 
lected might  show  the  law  of  peace  in  time  of  peace. 

Wherever  possible,  the  exact  words  of  the  official  representa- 
tive have  been  retained  and  indicated  by  quotation  marks.  To 

avoid  confusion,  quotation  marks  have  not  been 
o/case?ti  employed  even  when  the  account  has  been  taken 

textually  from  some  authority  who  is  himself  relat- 
ing the  course  of  events,  but  in  every  such  instance  the  fact  of 
such  partial  or  textual  borrowings  is  conspicuously  noted  in  paren- 
thesis immediately  following  the  case  or  the  paragraph  containing 
the  extract.  We  have  especially  to  thank  Professor  Moore  for  his 
kind  permission  to  make  such  extracts  from  his  Digest  of  Inter- 
national Law  and  his  International  Arbitrations.1  The  exact  words 
of  the  statesman  bring  home  the  real  nature  of  international  in- 
tercourse better  than  any  paraphrase  can  hope  to,  and  where  for 
lack  of  space  it  has  been  necessary  to  abridge,  every  effort  has 
been  made  to  adhere  as  closely  as  possible  to  the  original.  The 
same  may  be  said  in  regard  to  translations.  After  all,  it  must 
not  be  forgotten  that  there  is  as  yet  no  technical  language  of  in- 
ternational law,  and  even  when  French  itself,  the  official  language 
of  diplomacy,  is  employed,  the  genius  of  the  language  abhors  the 
employing  of  words  in  a  technical  sense.  The  simplest  expression 
of  the  fundamental  idea  is  the  fit  language  for  international  law. 
The  aids  to  its  comprehension  are  familiarity  with  the  practice  of 
independent  states  and  breadth  of  vision.  In  many  instances  it 
is  necessary  to  comprehend  the  principles  of  the  Roman  law, 
which  as  "written  reason"  was  applied  to  settle  many  a  con- 
troversy between  the  states  of  Europe. 

The  estimate  of  the  value  of  the  cases  as  precedents  illustra- 
tive of  the  law  of  nations  must  change  in  the  light  of  each  ad- 
vance in  science.  It  is  better  that  the  student  should  exercise  his 
own  critical  faculties,  assisted  by  the  instructor,  than  that  he 
should  find  the  cases  clogged  with  footnotes  giving  the  authors' 
view  of  the  law  and  their  interpretation  of  the  illustrative  case. 

1  Much  of  the  material  in  this  volume  has  come  from  these  two  works,  where 
the  student  will  find  the  fuller  references  and  amplification  of  instances  to  widen 
his  knowledge. 


PREFACE  xi 

An  effort  has  been  made  to  obviate  the  inconvenience  due  to  the 
absence  of  explanatory  notes  by  means  of  the  index,  which  com- 
bines in  a  convenient  alphabetical  arrangement  the  following 
features: 

(1)  a  dictionary  or  glossary,  denning  some  of  the  most  impor- 
tant words,  and  giving  the  meaning  of  foreign  and  unusual 
words,  when  a  translation  in  brackets  is  inadequate; 

(2)  a  list  of  the  cases  considered  and  important  citations  of 
others; 

(3)  an  index  of  subject-matter,  so  that  it  will  be  easy  to  utilize 
the  material  of  the  whole  book; 

(4)  names  of  the  statesmen  and  judges,  with  references  to  their 
statements; 

(5)  cases  and  incidents  classified  under  the  states  to  which 
they  relate; 

The  classification  of  the  material  selected  does  not  follow  any 
existing  model.  There  is  no  accepted  systematic  classification  of 
international  law,  and  we  have  not  found  it  feasible 
to  follow  any  model  in  our  arrangement  of  the  mate- 
rial. The  limitations  of  a  case  book  make  necessary  a  simple  divi- 
sion into  chapters  with  few  subheadings  —  a  mere  skeleton  about 
which  the  flesh  may  form.  The  test  of  any  classification  is,  first,  its 
usefulness  or  practicability,  and,  second,  its  accuracy,  so  that  each 
instance  may  easily  be  placed  and  rediscovered  under  its  proper 
heading.  We  hope  that  the  classification  which  we  offer  may  de- 
monstrate its  superiority  over  many  of  the  antiquated  systems 
now  employed,  but  even  should  the  instructor  prefer  some  other 
plan,  his  students  will  be  helped  to  avoid  the  error,  so  natural  to  the 
uninitiated,  that  there  is  something  sacred  and  unalterable  about 
any  classification  they  may  chance  to  study.  No  words  need  be 
wasted  in  explanation,  since  the  plan  of  classification  adopted 
can  easily  be  understood  at  a  glance. 

No  rules  can  be  given  to  direct  the  student  in  the  use  of  the 
cases,  since  the  system  employed  will  depend  very  much  upon 
the  methods  of  instruction  followed;  yet  subject  to  m. 

Method  of  study 

such  correction  and  modification  as  the  instructor 

may  furnish,  the  student  will  find  it  profitable  to  consider  the 

following  suggestions: 


xii  PREFACE 

Never  attempt  to  learn  the  cases  by  heart,  since  such  a  habit 
tends  to  blunt  the  reasoning  faculties. 

After  reading  the  case  through  thoroughly  and  deliberately, 
shut  the  book  and  repeat  over  aloud  the  substance  of  the  argu- 
ments on  both  sides,  concluding  with  a  statement  of  the  decision 
and  the  action  taken.  This  rehearsal  is  very  important,  because, 
when  the  student  comes  into  class  and  says  a  word  or  two,  there 
will  be  a  tendency  for  his  tongue  to  follow  freely  in  the  groove 
previously  worn  by  his  spoken  word.  After  this  first  repetition, 
let  the  student,  before  he  looks  again  at  the  book,  write  out  very 
briefly  the  main  point  or  points  in  dispute,  after  which  let  him 
speak  aloud  (or  write,  or  both)  what  he  thinks  is  the  law  or  princi- 
ple applicable  (conscious  always  of  the  probability  that  his  reply 
is  deficient). 

The  next  step  may  well  be  to  consult  one  or  more  authorities, 
rigidly  turning  aside  from  all  side  issues  (or  he  will  never  finish 
the  case)  until  he  finds  a  consideration  of  the  principle  applicable. 
Then  let  him  return  to  a  second  reading  of  the  case  in  the  light  of 
his  reflection  and  study  of  the  sources,  when,  unless  the  case  is 
very  involved,  he  should  reach  such  a  thorough  understanding  of 
it,  as  to  make  it  easy  for  him  to  repeat  the  case  aloud  to  himself. 
He  is  now  ready  to  recite  it  with  fluency  in  the  classroom. 

If  time  allows,  the  student  may  try  several  further  means  to 
deepen  his  acquaintance  with  the  principles  involved  in  the  case. 

It  is  essential  for  the  student  to  fix  the  main  principles  in  his 
mind  before  he  attempts  to  retain  or  understand  matters  of 
detail. 

As  the  instructor  may  ask  him  to  criticize  or  defend  the  views 
expressed,  he  should  have  firmly  in  his  grasp  the  necessary  argu- 
ments and  references  to  sources.  It  is  here  that  he  should  avail 
himself  of  his  capacity  for  accurate  memorizing  and  should  refer 
to  the  sources,  giving  exact  names,  editions,  even  page  numbers, 
when  he  can  be  sure.  Especially  should  he  acquire  the  habit  of 
referring  to  treaties  by  the  name  of  the  city  of  signature,  and  by 
the  date  of  the  month  as  well  as  of  the  year. 

Every  student  should  take  occasion  to  interpose  from  time  to 
time  in  the  discussion,  if  for  no  other  reason  than  to  acquire  the 
habit  of  participating  in  the  work  of  the  class.  Many  a  good 


PREFACE  xiii 

student,  through  shyness  or  for  other  reasons,  loses  a  valuable 
opportunity  to  deepen  his  mastery  of  the  subject.  These  inter- 
ruptions will  not  be  resented  by  the  instructor  and  members  of 
the  class,  if  they  are  not  too  frequent  and  if  the  question  or  re- 
mark be  tersely  stated.  Someone  has  said  that  if  you  do  not  want 
to  be  a  bore,  you  must  drop  the  subject  the  moment  your  state- 
ment is  understood.  Just  so  in  the  class.  The  point  or  objection 
should  be  concisely  stated  to  the  best  of  the  student's  ability, 
and  dropped  in  mid-course  as  soon  as  the  meaning  is  clear. 

In  the  recitation,  each  side  of  the  question  may  be  assigned  to 
a  different  student,  who  will  be  asked  to  present  the  arguments 
for  his  side,  and  then  to  refute  those  of  the  other.  This  course 
may  be  advantageously  applied  by  two  or  more  students  working 
together.  Each  one  can  represent  in  the  discussion  one  of  the 
governments  concerned.  This  moot-diplomacy  method  may  be 
used  in  the  cases  of  arbitration,  and  the  important  questions  of 
arbitral  procedure  can  thus  be  taken  up  in  conjunction  with  the 
study  of  the  principles  decided  in  the  awards. 

This  method  can  be  further  used  to  advantage  for  a  more  de- 
tailed and  complete  study  of  the  practice  of  diplomacy  than  any 
textbook  can  provide. 

These  with  other  variations  may  be  employed  by  the  teacher, 
when  the  members  of  the  class  have  had  sufficient  experience 
and  acquaintance  with  the  principles  to  make  such  modifications 
of  the  routine  class  methods  profitable. 

The  greatest  danger  in  using  the  case  system  is  that  a  few  of 
the  better  men  do  all  the  work,  and  unless  the  class  is  to  be  in- 
flicted with  the  intolerable  burden  of  a  halting  recitation,  a  few 
soon  become  spokesmen  for  the  class.  To  obviate  this,  the  in- 
structor must  permit  interruption  even  when  it  breaks  into  the 
thread  of  the  argument,  and  give  an  encouraging  answer,  so 
that  the  interrupter  feels  well  pleased  with  his  achievement. 
The  important  argument  can  then  be  resumed  where  it  was 
left  off. 

When  time  presses  and  the  cases  have  accumulated,  many 
pages  may  be  covered  by  short,  incisive,  searching  questions, 
which  allow  the  student  to  show  his  mastery  of  the  case,  where- 
upon the  instructor  turns  to  the  succeeding  case. 


xiv  PREFACE 

Of  course  the  class  should  not  be  taken  in  alphabetical  order  — 
or  too  systematically.  Constant  side  questions,  often  answerable 
by  a  yes  or  a  no,  will  keep  all  upon  the  qui  vive,  without  confusing 
the  statement  of  the  case  or  wasting  time. 

It  is  important  to  acquire  the  habit  of  referring  to  the  cases  by 
name,  and  it  will  be  preferable  to  announce  that  the  examinations 
will  be  based  upon  the  cases  in  the  book  and  upon  others  closely 
analogous.  The  instructor  may  prepare  such  cases  for  examina- 
tion purposes,  varying  in  difficulty  according  to  the  capacity  of 
the  students,  and  involving  principles  or  facts  similar  to  the  cases 
studied  but  not  always  identical  with  them.  In  discussing  such 
cases,  students  will  find  occasion  to  refer  to  the  cases  in  the  text 
and  to  make  application  of  the  principles  they  illustrate. 

Without  keeping  any  record  of  the  recitations,  the  instructor  will 
be  able  to  follow  the  work  of  the  students,  if  the  class  is  not  too 
large,  and  to  rely  upon  the  eagerness  to  learn  as  the  sole  stimulus. 
Where  the  preceptor  does  not  feel  justified  in  thus  throwing  the 
entire  responsibility  upon  the  student,  he  may,  of  course,  keep  an 
accurate  account  of  the  recitations  and  notify  the  delinquents 
from  time  to  time. 

In  conclusion,  I  would  emphasize  that  this  collection  of  cases 
does  not  claim  to  cover  every  principle,  but  only  those  best  rec- 
ognized or  most  important.  The  supplementary  use  of  some  good 
text  book  should  be  urged  upon  every  student.  The  selection  of 
cases  should,  however,  constitute  the  basis  of  the  work  of  the 
class.  At  the  same  time  the  better  students  should  be 
allowed  and  encouraged  to  pursue  their  investigations  further 
afield. 

It  is  almost  inevitable  at  times  that  several  recitations  will  be 
spent  upon  one  assignment,  but  by  lengthened  assignments  and 
increased  speed  of  recitation,  the  instructor  will  be  able  to  regain 
the  lost  time.  Skipping  is  to  be  avoided,  since  it  always  dis- 
courages a  class  not  to  recite  the  lesson  for  which  it  has  made 
careful  preparation.  The  course  can  easily  be  lengthened  by  sup- 
plemental lectures  or  additional  cases  assigned  for  investigation 
and  report  by  some  of  the  more  advanced  and  enthusiastic 
students. 

In  addition  to  the  general  aids  to  the  study  of  cases  as  given 


PREFACE  xv 

above,  it  will  be  well  for  the  student  to  ask  himself  whether  the 
case  he  is  studying  is  properly  and  well  placed  under  the  heading 
of  the  book,  or  whether  it  does  not  more  properly  be-  Spedal  ^Tec. 
long  under  another  section.    From  time  to  time  the  tions  to  the 
student  should  re-read  these  preparatory  remarks  in  8 
regard  to  the  methods  of  study,  and  the  introductory  chapter 
explaining  how  to  find  the  law.  In  reference  to  each  case,  he  may 
find  some  useful  hints  in  the  index,  but  it  will  be  better  for  him 
to  search  out  from  other  sources  all  the  explanation  of  the  cases, 
and  consult  the  index  only  after  he  has  put  forth  his  own  efforts. 
In  this  way  the  index  will  not  become  a  lazy  man's  mental 
crutch,  but  will  serve  as  a  useful  indication  of  the  success  of 
his  research  and  as  guide  for  his  investigations  in  a  succeeding 
case. 

Students  who  wish  to  attain  a  profound  knowledge  of  inter- 
national law  should  early  acquire  the  habit  of  consulting  the 
principal  sources  and  authorities.  The  following  are  among  the 
more  important: 

Moore:  International  Arbitrations  (1898),  6  vols. 

Moore:  Digest  of  International  Law  (1906),  8  vols. 

Foreign  Relations  of  the  United  States. 

British  and  Foreign  State  Papers. 

American  Journal  of  International  Law. 

Malloy:  Treaties,  2  vols.,  1910;  3d  vol.,  1913. 

Westlake:  International  Law  (26.  edition),  2  vols.,  Part  I, 
Peace,  1910;  Part  n,  War,  1913  (Cambridge  University  Press). 

Further  bibliographical  indications  will  be  found  in  the  preced- 
ing and  in: 

Hershey:  The  Essentials  of  International  Public  Law  (1912, 
Macmillan). 

Oppenheim:  International  Law  (2d  edition,  1912);  vol.  I,  Peace; 
vol.  n,  War  and  Neutrality  (Longmans,  Green  &  Co.). 

Moore,  Hershey  and  Oppenheim  all  give  references  to  non- 
English  sources. 

Although  the  original  plan  of  the  book  and  the  selection  of  the 
cases  are  mine,  Mr.  Munro  deserves  the  principal 
credit  for  the  preparation  of  the  material  which  is 
new.     The  unique  account  of   the  Hague  Arbitration  Cases, 


xvi  PREFACE 

which  are  the  backbone  of  the  book,  are  almost  entirely  his 
work.1 

We  cannot  adequately  express  our  thanks  to  Professor  Moore 
for  many  suggestions  which  have  been  followed  with  profit,  nor 
for  the  extensive  borrowing  of  material  from  his  two  Digests.  We 
have  preferred  to  acknowledge  that  what  he  has  done  cannot  be 
improved,  rather  than  to  seek  after  a  vain  appearance  of  original- 
ity. Much  of  the  material  is  nevertheless  newly  prepared,  and  that 
which  is  taken  over  from  other  sources  will  be  made  available  for 
use  in  the  classroom,  whither  the  many-volumed  works  of  the  great 
collections  of  sources  cannot  conveniently  be  carried. 

We  acknowledge  our  debt  to  Miss  Helen  C.  Nutting  for  the 
preparation  of  the  material  in  the  Mattueof  case  and  the  Prit- 
chard  affair,  as  well  as  for  the  care  with  which  she  has  checked  up 
references  and  helped  to  correct  the  proof. 

E.  C.  S. 

COLUMBIA  UNIVERSITY, 
March,  1916. 

1  While  Mr.  Munro  was  assisting  Professor  Wilson  at  Harvard  he  had  an  oppor- 
tunity to  pursue,  with  a  group  of  advanced  students  taking  Dr.  Wilson's  course  on 
the  Hague  Arbitrations,  the  critical  study  of  those  cases.  No  work  could  have  been 
more  beneficial  as  a  preliminary  to  the  preparation  of  these  cases,  though  it  in  no 
way  lessens  the  originality  of  Mr.  Munro's  contribution. 


CONTENTS 


INTRODUCTION 


Triquet  P.  Bath 
The  Paquete  Habana. 


PART  I 
DIPLOMACY:  THE  INTERCOURSE  OF  STATES 


CHAPTER  I 

THE  RIGHTS  AND  DUTIES  OF  THE   AGENTS  OF 
INTERNATIONAL  INTERCOURSE 

{  i.  DIPLOMATIC  REPRESENTATIVES 

The  Case  of  Mattueof,  Ambassador  of  Peter  the  Great  (1708)        .  3 

The  Case  of  Gallatin's  Coachman  (1827) 7 

Soule's  Case  (1854) 9 

The  Lord  Sackville  West  Incident  (1888) 10 

Duke  of  Ripperda's  Case  (1726) 16 

Expulsion  of  the  Secretary  of  the  Nunciature  at  Paris  (1906)       .      .  17 

§  2.  CONSULS 

Consul  Priest's  Case  (1855) 18 

Barbuit's  Case  (1737) 19 

Consul  Weile's  Claim  (1870) 22 

The  Pritchard  Affair  (1844) 22 

The  Case  of  Lee  Jortin  (1900) 26 

Consul  Rogers's  Case  (1866) 30 

Dillon's  Case  (1854)          31 

The  Incident  of  the  French  Consulate  at  Florence  (1887-88)    .      .  34 

§  3.  OFFICERS 

The  Case  of  the  Forte  (1863) 38 

Captain  Gamble's  Case  (1818) 43 

Protection  of  Americans  in  Turkey  (1895) 44 

Restoration  of  Order  in  Samoa  (1889) 45 

$  4.  SOVEREIGNS:  HEADS  OF  STATES 

De  Haber  r.  The  Queen  of  Portugal  (1851) 46 


XV111  CONTENTS 

CHAPTER  II 

METHODS  OF  PROCEDURE  FOR  THE  SETTLEMENT  OF 
INTERNATIONAL  DIFFERENCES 

§  5.  DISCUSSION  AND  COMPROMISE   .     .      .    ". 47 

§  6.  MEDIATION  AND  GOOD  OFFICES 

The  Caroline  Islands  (1885) 49 

Protection  of  Venezuelan  Citizens  in  France  (1895)      .       .       .       .51 
The  Case  of  Martin  Koszta  (1853) \  •   :      .51 

§  7.  CONFERENCES 

The  First  Hague  Peace  Conference  (1899) 52 

§  8.  ARBITRATION,  ARBITRAL  PROCEDURE,  AND  THE   PRESENTATION  OF 
CLAIMS 
The  John  H.  Williams  Claim  (1885)   .      .      .      .   !  .      'i      .      .55 

§  9.  MEASURE  OF  DAMAGES 

Russia  v.  Turkey  (1912)          58 

§  10.  REVISION  OF  ARBITRAL  AWARDS 
(a)  Res  judicata 

The  Pious  Fund  of  the  Californias  (1902) 64 

(6)  Corruption  of  the  tribunal 

The  Claims  against  Venezuela  (1866-90) 69 

(c)  Fraudulent  claim 

The  Weil  and  La  Abra  Cases  (1868-1902) 75 

(d)  Excess  of  power 

The  Northeastern  Boundary  of  the  United  States  ( 1 83 1 ) .      .    8 1 

(e)  Essential  error 

The  Pelletier  Claim  (1884-87) 82 

The  Orinoco  Steamship  Company  Case  (1910)   ....  89 
(/)  New  evidence 

The  Lazare  Claim  (1884-87)         96 

§  ii.  COMMISSIONS  OF  INQUIRY 

The  Dogger  Bank  Incident  (1904) 98 

§  12.  PROTESTS  AND  APOLOGIES 106 

§  13.  COERCIVE  MEASURES  SHORT  OF  WAR 
(c)  Retorsion 

(See  The  Wohlgemuth  Affair,  p.  137) 

Legislative  retorsion  against  British  vessels  (1818)    ....  107 

(b)  Reprisals 

(See  The  Case  of  the  Forte,  p.  38) 

(c)  Threats  and  the  display  of  force 

The  Case  of  the  Suchet  (1902) 107 


CONTENTS  XIX 

(d)  Withdrawal  of  diplomatic  representatives 

The  United  States  and  Venezuela  (1908) 108 

(See  The  Zappa  Incident,  p.  155,  and  The  New  Orleans  Lynch- 
ing, p.  264.) 

(«)  Collective  intervention 

Collective  intervention  of  the  Powers  in  China  (1900-01)   .      .112 
The  Return  of  the  Chinese  Indemnity  (1907)  .       .      .      .      .117 

(/)  Use  of  force 

The  Bombardment  of  Greytown   (1854)    .      .      .      .'     .  119 

§  14.  SELF-HELP 

The  Caroline  and  the  McLeod  Cases  (1837-42)      .      .      .      ,:     .  121 
American  Naval  Officers  sent  to  aid  Missionaries  in  Turkey  (1895)    124 

CHAPTER  III 

TREATIES  AND  OTHER  INTERNATIONAL  AGREEMENTS 
§  15.  FORMATION  OF  TREATIES 126 

§  16.  INTERPRETATION  AND  APPLICATION  OF  TREATIES 

Vested  rights  in  the  Canal  Zone  (1913) 127 

Perpetual  Leases  in  Japan  (1905) 127 

5  17.  TERMINATION  OF  TREATIES 

The  Neutralization  of  the  Black  Sea  (1856,  1870-71)   ....  134 

The  Wohlgemuth  Affair  (1889) 137 

The  Effect  of  War  on  Treaties 149 


PART  II 

THE  LAW  OF  NATIONS:  SUBSTANTIVE  INTERNATIONAL 

LAW  RECOGNIZED  BY  GOVERNMENTS  AS  A  RULE  OF 

CONDUCT  BINDING  UPON  THEM  AND  OBSERVED 

BY  THEM    IN   PRACTICE. 


CHAPTER  IV 
THE  EQUALITY  OF  STATES 

S  18.  SOVEREIGNTY,  INDEPENDENCE,  AND  EQUALITY 153 

(a)  Sovereignty 

An  Arrest  in  Canada  (1863) 154 

(6)  Independence 

The  Zappa  Affair  (1891)          155 

Underbill  v.  Hernandez  (1897) 156 

The  Brazilian  Coffee  Case  (1912) 159 


XX  CONTENTS 

(c)  Equality 

United  States  and  Colombia  (1888) 162 

(d)  Respect 

Respect  for  the  American  Flag  in  Greece  (1909)    ....  163 

§  19.  RECOGNITION 
(c)  New  States 

The  United  States  and  Buenos  Ayres  (1818)    .....  164 
(&)  New  Governments 

The  French  Republic  (1848) 166 

§  20.  STATE  SUCCESSION 

(a)  Things  and  obligations 

The  Sapphire  (1871) 168 

The  Cuban  Debt  (1898) 170 

(&)  Allegiance 

The  Nationality  of  the  French  Residents  of  Alsace-Lorraine 

(1871) 172 

(c)  Property  rights  of  individuals 

The  Canal  Zone  Squatters  (1913) 174 

§  21.  SERVITUDES  AND  LEASES 

The  North  Atlantic  Fisheries  Arbitration  (1910)          ....  177 
Leased  Territory  in  China  (1898) 203 

§  22.  TITLE  TO  TERRITORY 

The  Falkland  Islandi  (1829) 208 


CHAPTER  V 

THE  RESTRICTIONS  WHICH  INTERNATIONAL  LAW  PLACES 
UPON  THE  EXERCISE  OF  JURISDICTION  BY  THE  STATE 
WITHIN  THE  NATIONAL  BOUNDARIES 

§  23.  PHYSICAL    LIMITS    WITHIN    WHICH    A    STATE    is    RECOGNIZED    AS 
SOVEREIGN  AND  RESPONSIBLE  FOR  THE  ENFORCEMENT^-  INTER- 
NATIONAL LAW 
The  Fur  Seal  Arbitration  (1893) 218 

§  24.  IMMUNITIES  OF  THE  AGENTS  OF   INTERNATIONAL  INTERCOURSE 

The  Schnaebete  Incident  (1887) 225 

§  25.  LEGATIONS 

The  Nikitchenkoff  Case  (1865)     .  228 

§  26.  ARMED  FORCES  AND  WARSHIPS 

The  Schooner  Exchange  (1812) 230 

(See  The  Casablanca  Arbitration,  p.  377.) 


CONTENTS  XXI 

§  27.  ASYLUM 

The  Spanish  Warships  at  New  Orleans  (1862)       .     :  .^' ',      .      .242 
The  Overthrow  of  Balmaceda  (1891) 243 

§  28.  MERCHANT  VESSELS 

The  Cases  of  the  Sally  and  the  Newton  (1806)       .       .      .       .       .  246 

The  Case  of  the  Creole  (1853) .       .248 

The  Wildenhus  Case  (1886)       ;..;*      .      . 253 

§  29.  RIGHTS  OF  ALIENS 

The  Torrey  Case  (1903)          259 

The  Cadenhead  Case  (1914)          262 

The  New  Orleans  Lynching  (1891) 264 

Connell's  Case  (1888) 270 

The  Case  of  Mrs.  Honey  (1887)         273 

CHAPTER  VI 
THE  REGULATION  OF  COMMERCE,  TRAVEL,  AND  SOJOURN 

§  30.  REGULATION  OF  IMMIGRATION  AND  SOJOURN 

The  Case  of  Charalambis  (1903) 275 

The  Case  of  Roussel  (1909) 276 

The  Case  of  Alfred  Lumb  (1910) 280 

§  31.  EXPULSION 

The  Case  of  Ben  Tillett  (1896) 284 

Paquet's  Case  (1903) 290 

$  32.  TARIFF  AND  REGULATION  OF  IMPORTS 

Guatemalan  Customs  Laws  (1875) 291 

Inspection  of  American  Pork  Exports 292 

5  33-  TRANSIT  FACILITIES 

Privileges  of  Transit  to  Chinese  Laborers  (1882) 295 

Navigation  of  the  Mississippi  (1792) 296 

CHAPTER  VII 
THE  PROTECTION  OF  NATIONAL  INTERESTS  ABROAD 

5  34.  BASIS  OF  PROTECTION 

The  Koszta  Case  (1853)          298 

§  35.  NATIONALITY  OF  INDIVIDUALS 

The  Case  of  Dubuc  (1910) 311 

Jus  Sanguinis  and  Jus  Soli  in  Chile  (1907) 315 

The  Canevaro  Claim  (1912) 316 

§  36.  EXPATRIATION  AND  PERPETUAL  ALLEGIANCE 

The  Warren  and  Costello  Cases  (1867) 320 

The  Case  of  John  B.  Foichat  (1884)         322 


XX11  CONTENTS 

§  37.  PROTECTION  OF  THE  LIFE,  LIBERTY,  AND  PROPERTY  OF  NATIONALS 

WITHIN  ANOTHER  STATE     .      .      .      T 325 

§  38.  NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

The  Case  of  the  Caracas  Waterworks  (Compagnie  Generate  des 

Eaux  de  Caracas)  (1903) 325 

The  Alsop  Claim  (1911)          326 

The  Delagoa  Bay  Railway  Arbitration  (1900) 334 

§  39.  NATIONALITY  AND  PROTECTION  OF  VESSELS 

The  Dhows  of  Muscat,  France  and  Great  Britain  (1905)    .      .      .  350 

The  Case  of  Francis  Boyle  (1853) 359 

The  Case  of  the  Masonic  (1879)          361 

§  40.  PROTECTION  OF  PROPERTY  AND  PERSONS  OF  NATIONALS  ON  THE 
HIGH  SEAS,  AND  ELSEWHERE  OUTSIDE  THE  FRONTIERS  OF  ANY 
STATE 

Impressment  of  Seamen          368 

The  Case  of  the  Virginius  (1873) 368 

The  Case  of  the  Costa  Rica  Packet  (1888) 371 


CHAPTER  VIII 

THE  CONTROL  OVER  NATIONALS  AND  NATIONAL  VESSELS, 
AND  THE  EXERCISE  OF  JURISDICTION  OVER  CERTAIN 
ACTS  OCCURRING  WITHIN  A  FOREIGN  STATE 

§  41.  EXERCISE  OF  JURISDICTION  OVER   REPATRIATED   NATIONALS  FOR 
CRIMES  AND  ACTS  DONE  ABROAD 
Offenses  committed  by  Frenchmen  abroad  (1910)        ....  373 

§  42.  EXERCISE  OF  JURISDICTION  OVER  NATIONALS  RESIDENT  ABROAD 

Marriage  of  American  Women  to  Subjects  of  Greece  (1910)  .       .  374 

The  Case  of  Arakelyan  (1885) 375 

(See  The  Charlton  Case,  p.  408.) 

§  43.  CONSULAR  OR  EXTRATERRITORIAL  JURISDICTION 

The  Casablanca  Arbitration  (1909) 377 

§  44.  EXERCISE  OF  JURISDICTION  OVER  ALIENS  FOR  ACTS  DONE  WITHIN 

ANOTHER  STATE 
Cutting's  Case  (1886) 386 

§  45.  TAXATION  OF  PROPERTY  SITUATED  ABROAD 

(See  Case  of  Arakelyan,  p.  375,  and  Case  of  Mrs.  Honey,  p.  273)    .  390 

§  46.  CONTROL  OVER  VESSELS  FLYING  THE  NATIONAL  FLAG 

Regina  v.  Lesley  (1860) 390 

The  Tcherniak  Affair  (1907) 392 


CONTENTS  xxii: 


CHAPTER  IX 

THE  COOPERATION  OF  STATES  FOR  A  RECIPROCAL 
BENEFIT 

§  47.  RECIPROCITY  AS  A  BASIS  OF  TREATMENT  BETWEEN  GOVERNMENTS 

The  Santa  Cruz  (1798) ."     ...  394 

Cattle  on  the  Mexican  Border  (1896) 401 

§  48.  COMITY 

The  Case  of  Binzegger  (1884) 401 

The  Case  of  Jacob  Franck  (1896) 402 

§  49.  EXTRADITION 

The  Extradition  of  Nalbandian  (1910) 403 

The  Charlton  Extradition  Case  (1913) 408 

The  Case  of  Myers  and  Tunstall  (1862) 411 

!  Anarchists  (1894) 412 

United  States  r.  Rauscher  (1886) 413 

The  Savarkar  Case  (1911) 416 

§  50.  LETTERS  ROGATORY 

Letters  Rogatory  (1874) 422 


CHAPTER  X 


§  51.  PIRACY 

Sir  Leoline  Jenkins  relates  the  Trial  of  Privateers  for  Piracy  (1675)  424 

§  52.  PROTECTION  OF  SOVEREIGN  INTERESTS 

The  Emperor  of  Austria  r.  Day  and  Kossuth  (1861)  ....  425 

§  53.  POLICE  ACTION  BY  COLLECTIVE  INTERVENTION 

The  Blockade  of  Zanzibar  (1888-89)          43O 

5  54.  SLAVE  TRADE 

The  Case  of  the  Brig  Lawrence  (1848) 430 

§  55.  MARITIME  JURISDICTION 

The  Scotia  (1871) 432 

§  56.  FOREIGN  JUDGMENTS 

Hilton  v.  Guyot  (1894) 436 


XXIV  CONTENTS 

§  57.  PROTECTION  OF  THE  LIFE  AND  LIBERTY  OF  NATIONALS  OF  OTHER 
STATES 

The  Merchant  Shipping  Act  (1876) 439 

The  Jews  in  Persia  (1897)       .      .       .      .....      .      .      .445 

§  58.  SUCCOR 

The  Italian  Earthquakes  (1908) 446 


CHAPTER  XI 

COOPERATIVE  ACTION  BETWEEN  A  GROUP  OF  STATES 
FOR  THE  PROTECTION  OF  THEIR  COMMON  INTERESTS 

§  59.  INTERNATIONAL  COMMISSIONS  FOR  THE  REGULATION  OF   RIVERS 

Navigation  of  European  Rivers  (1814-15) 450 

§  60.  INTERNATIONAL  UNIONS 

Universal  Postal  Union 451 

LIST  OF  CASES 455 

LIST  OF  ARBITRATIONS 460 

INDEX 461 


INTRODUCTION 


THE  SOURCES  OF  INTERNATIONAL  LAW:  HOW  TO 
KNOW  THE  LAW 

IF  the  reader  or  student  were  to  place  himself  in  the  position 
of  the  officials  who  are  entrusted  with  the  direction  of  the  foreign 
relations  of  the  government,  he  would  have  to  ask  himself:  Where 
shall  I  look  for  the  guide  of  my  action? 

In  such  circumstances  the  first  rule  of  conduct  must  be  —  in  lieu 
of  a  better  —  to  follow  the  practice  of  his  predecessors  in  office. 
This  merely  would  mean  to  apply  the  system  which  the  newly  ap- 
pointed official  finds  in  operation.  Since,  however,  no  two  cases 
are  identical,  before  the  official  can  decide  what  action  to  take  in 
any  particular  instance  he  must  first  have  discovered  what  are  the 
governing  principles  of  the  existing  practice.  He  will  find  that 
the  first  means  of  ascertaining  them  will  be  to  search  out  the  pre- 
cedents upon  which  the  position  taken  by  the  government  is 
based,  and  thus  advised,  he  will  attempt  to  maintain  what  he 
considers  to  be  this  position  of  his  state.  He  will,  however,  al- 
ways take  into  account  the  protection  of  the  immediately  im- 
portant interests  of  his  country.  Every  government  attempts  to 
secure  the  recognition  of  its  views  as  shown  by  its  practice,  inter- 
preted in  such  a  way  as  to  protect  the  nation's  interests.  This 
same  procedure  pursued  by  the  officials  of  another  government 
may  result  in  a  stand  quite  at  variance  with  that  of  the  first- 
mentioned  government.  What  will  those  responsible  for  the  ef- 
fective direction  of  their  country's  foreign  affairs  do  in  such  a 
case? 

The  first  proceeding,  which  is  also  the  easiest  and  simplest,  is 
to  reach  some  direct  agreement  for  the  settlement  of  the  matter. 
Since,  however,  it  is  more  convenient  to  have  a  general  rule 
than  to  waste  tune  in  reaching  a  separate  understanding  for  each 
separate  instance,  governments  enter  into  broader  agreements, 


xxvi  INTRODUCTION 

called  conventions  or  treaties,1  to  regulate  these  matters.  An- 
other advantage  of  this  mechanism  is  that  the  governments  con- 
cerned are  able,  through  mutual  concessions  in  regard  to  points 
of  minor  importance,  to  obtain  a  compromise  rule  of  regulation 
embracing  what  each  considers  essential.  This  method  of  solu- 
tion by  compromise  agreements,  based  upon  reciprocal  concession, 
is  the  foundation  of  the  body  of  conventional  or  treaty  stipula- 
tions which  govern  such  a  great  proportion  of  the  relations  be- 
tween states,  and  also  of  the  less  formal  agreements  effected 
through  exchanges  of  notes  or  other  friendly  understandings. 

Considerations  of  convenience  will  always  lead  diplomats  to 
expedite  the  matters  entrusted  to  then*  charge  by  the  simple 
and  effective  method  of  reference  to  treaty  stipulations  or  by 
entering  into  some  agreement  made  for  the  event.  Such  a  means 
is  employed  to  transact  a  great  part  of  the  business  between 
independent  states.  It  may  be  said  that  every  such  instance  is 
governed  by  the  well-recognized  and  fundamental  principle  of 
international  law  that  all  agreements  must  be  observed  in  good 
faith  —  pacta  seruenda  sunt.  But  in  those  cases  where  no  treaty 
or  other  agreement  is  recognized  by  both  parties  as  applicable, 
it  may  not  always  be  possible  to  reach  a  satisfactory  agreement 
at  the  moment,  and  where  a  solution  presses  it  becomes  necessary 
to  supplement  by  other  rules  the  one  which  we  have  just  enunci- 
ated. 

The  next  or  second  rule  for  a  government  to  employ  to  deter- 
mine its  conduct  looks  to  the  observance  of  the  previous  practice 
in  the  absence  of  some  rule  demonstrated  to  be  superior.  When, 
however,  the  rule  of  a  compromise  agreement  between  the  views 
of  the  governments  themselves  based  upon  the  national  practice 
and  interests  of  each  of  the  governments  concerned,  has  not  proved 

1  From  time  to  time  the  representatives  of  the  nations  in  conclave  have  entered 
into  treaties  binding  their  respective  states  to  observe  certain  rules  of  general  applica- 
tion. This  is  sometimes  a  codification  of  existing  law  to  make  easier  its  application 
and  to  avoid  disputes.  Again,  it  may  be  a  conventional  rule,  for  the  regulation  of 
questions  of  minor  importance,  where  the  primary  consideration  is  to  obtain  a  fixed 
rule.  In  still  other  instances  the  rules  agreed  upon  may  really  be  in  the  nature  of 
legislation  for  the  future.  In  this  latter  event,  enthusiasm  without  experience  often 
seeks  like  Canute  to  arrest  by  words  the  irresistible  advance  of  the  forces  of  nature. 
Experienced  statesmen  are  cautious  and  modest  in  their  attempts  to  originate  legis- 
lation for  the  world. 


THE  SOURCES  OF  INTERNATIONAL  LAW  xxvii 

efficacious,  recourse  must  be  had  to  another  practice  than  that  of 
each  nation  considered  separately.  The  general  practice  of  hide- 
pendent  states,  as  shown  hi  previous  controversies,  must  now 
be  considered.  If  it  is  found  that  similar  differences  in  the 
past  have  been  regulated  by  two  governments  in  a  particular 
manner,  the  officials  of  the  two  governments  in  disagreement 
will,  ordinarily,  follow  this  practice.  When  the  precedents  are 
numerous  and  extend  over  many  years,  the  practice  becomes  a 
custom.1 

1  It  is  natural  that  men  should  apply  to  the  settlement  of  international  affairs 
the  same  rules  with  which  they  have  been  familiar  as  governing  all  their  social  re- 
lations in  more  restricted  fields  —  that  is,  in  national  or  local  affairs.  We  find  the 
most  generally  prevalent  and  deeply  revered  rule  to  be  that  of  the  obligation  to 
observe  the  solution  which  has  been  followed  in  other  cases  stretching  back  beyond 
the  memory  of  man  —  what  is  known  as  a  custom.  The  recognition  of  the  validity 
of  custom  has  two  practical  advantages.  In  the  first  place,  custom  almost  univer- 
sally means  that  when  similar  difficulties  have  occurred  in  the  past,  a  peaceful  solu- 
tion was  reached,  and  that  this  solution  worked  sufficiently  well  to  lead  to  its 
adoption  when  other  similar  situations  occurred  —  in  other  words,  there  is  a  pre- 
sumption that  the  custom  so  followed  is  a  practical  and  reasonably  satisfactory  rule 
to  apply.  The  second  advantage  of  a  customary  rule  is  that  it  is  fixed.  All  who 
follow  custom  do  so  on  the  assumption  that  all  recognized  customs  will  be  given  due 
consideration  in  the  settlement  of  any  difficulties  which  may  arise.  Even  where  it  is 
not  possible  to  find  a  well-defined  custom,  governments,  actuated  by  the  consider- 
ations above  referred  to,  are  generally  ready  to  accord  to  isolated  precedents  a  large 
measure  of  respect. 

Westlake  states  that  "custom  and  reason  are  the  two  sources  of  international  law," 
and  says  in  regard  to  the  former:  "Custom  must  not  be  confounded  with  mere  fre- 
quency or  even  habit  of  conduct.  In  any  state  or  other  society  in  which  customary 
law  is  admitted,  custom  as  a  part  of  law  means  the  conduct  which  is  enforced  as  well 
as  the  strict  or  loose  nature  of  the  society  allows,  —  not  always  very  well,  even  in 
the  case  of  national  law  in  the  ruder  stages  of  national  existence,  —  and  which  is 
followed  as  well  from  the  fear  of  such  enforcement  as  from  the  persuasion  that  the 
received  rule  requires  such  conduct  to  be  followed.  In  other  words,  custom  is  that 
line  of  conduct  which  the  society  has  consented  to  regard  as  obligatory.  We  have 
seen  that  international  law  is  law  just  because  the  conduct  which  it  directs  has  the 
character  thus  described,  so  that  for  custom  to  be  a  source  of  international  law  fol- 
lows from  the  definition  of  each.  Even  for  those  who  seek  for  international  right  — 
It  droit  international,  or  das  Volkerrecht  —  custom  must  be  a  source  of  such  right  so 
far  as  the  existence  of  the  custom  carries  a  presumption  of  its  reasonableness,  and  so 
far  as  in  ordinary  cases  there  is  a  duty  of  conscience  to  follow  it,  at  least  provisionally, 
until  it  can  be  amended."  (Westlake:  International  Law,  part  i,  Peace  [Cambridge, 
1910],  p.  14.) 

The  learned  Lorimer  remarks  in  regard  to  custom  as  a  source  of  international  law: 
"From  Vattel's  time,  again,  till  our  own,  partially  including  the  latter,  the  effort  has 
been  to  determine  the  consuetude,  which  is  accepted  as  the  common  law,  without 
reference  to  any  absolute  or  necessary  standard,  and  positive  law  is  criticised  or 
amended  only  in  accordance  with  prevailing  sentiments,  or  with  such  experience  of 
its  results  as  recent  historical  events  are  supposed  to  afford.  Even  where  these  experi- 


xxviii  INTRODUCTION 

When  governments  have  not  been  able  to  reach  a  satisfactory 
settlement,  either  by  means  of  a  compromise  agreement  or  by  the 
application  of  a  recognized  international  customary  rule  based 
upon  the  practice  of  governments,  unless  the  matter  is  to 
be  left  to  the  realm  of  force,  it  will  be  necessary  to  discover  still 
other  means.  Recourse  must  then  be  had  to  reason  to  search  out 
the  fundamental  principles.  Customary  rules  must  be  investi- 
gated to  discover  the  principles  which  they  enfold;  and  when  a 
certain  provision  is  found  in  many  treaties  oft  repeated,  reason 
must  discover  the  true  underlying  principle  which  is  the  fertile 
soil  to  which  the  provision  owes  its  growth.  The  overburdened 
statesmen  who  bear  the  great  responsibility  of  the  conduct  of 
foreign  affairs  might  well  stagger  before  the  task  of  applying  their 
reasoning  faculties  to  the  discovery  of  such  principles  and  their 
correct  application  to  the  actual  difficulty.  Nay,  in  many  in- 
stances it  would  be  beyond  their  powers.  Fortunately,  however, 
this  work  has  been  in  great  part  prepared  and  lies  ready  at  hand. 
Jurists  and  students  of  international  affairs  of  all  nations  have  been 
diligently  devoting  their  attention  to  this  very  task.  In  the  text- 
books and  commentaries  are  found  the  results  of  their  investiga- 
tions and  mature  deliberations.  The  bias  which  may  be  suspected 
when  an  author  treats  of  the  interests  which  affect  his  beloved 
country  disappears  before  a  consensus  of  authoritative  interpre- 
tation gathered  from  the  textbooks  prepared  by  jurists  of  all 
nations  and  in  all  tongues.1 

Such  in  the  main  is  the  method  which  governments  pursue  to 

ences  amounted  to  a  custom,  which  we  have  seen  to  be  one  of  the  most  important 
sources  of  the  law  of  nations,  Savigny's  profound  remark  [Die  Gewohnheit  ist  das  Kenn- 
zeichen  des  posiliven  Rechts,  nicht  dessen  Entstehungsgrund.  —  System,  vol.  i,  p.  35], 
that '  custom  is  the  mark  by  which  we  recognize  positive  law,  not  the  ground  from 
which  it  springs,'  was  entirely  overlooked."  (Extract  from  Lorimer:  Institutes  of  the 
Law  of  Nations  [1883],  vol.  I,  pp.  81-82.) 

1  "Reason  is  a  source  of  international  law  not  only  for  the  seekers  after  inter- 
national right,  who  will  appeal  to  reason  as  a  check  on  custom,  but  for  all,  and  for 
two  causes.  First,  the  rules  already  regarded  as  established,  whatever  their  source, 
must  be  referred  to  their  principles,  applied,  and  their  principles  extended  to  new 
cases,  by  the  methods  of  reasoning  proper  to  jurisprudence,  enlightened  by  a  sound 
view  of  the  necessities  of  international  life.  Secondly,  the  rules  as  yet  established, 
even  when  so  applied  and  extended,  do  not  cover  the  whole  field  of  international  life, 
which  is  constantly  developing  hi  new  directions.  Therefore,  from  time  to  time  new 
rules  have  to  be  proposed  on  reasonable  grounds,  acted  on  provisionally,  and  ulti- 
mately adopted  or  rejected  as  may  be  determined  by  experience,  including  the  effect, 


THE  SOURCES  OF  INTERNATIONAL  LAW  xxix 

find  a  fixed  rule  applicable  to  the  peaceful  settlement  of  differences 
between  them.  In  rare  instances  no  accord  is  possible  and  by 
mutual  agreement  the  difference  is  sometimes  referred  to  arbitra- 
tion. The  advantages  of  arbitration  are,  first,  that  the  parties 
secure  an  impartial  judge  to  apply  the  same  system  of  interna- 
tional law  which  they  would  ordinarily  apply  themselves;  and, 
second,  that  they  isolate  the  question  from  all  other  disturbing 
influences.  A  third  advantage  is  that  they  get  rid  of  the  ques- 
tion. They  agree  to  agree  at  a  fixed  date,  which  is  the  date  when 
the  award  is  rendered.  Governments,  in  their  relations  one  with 
another,  under  the  pressure  of  political  considerations  sometimes 

not  less  important  in  international  than  in  national  affairs,  of  interest  coupled  with 
preponderating  power. 

"With  both  custom  and  reason  in  our  subject  Roman  law  is  so  intermixed  that 
its  position  requires  a  separate  notice  to  make  it  clear.  Modern  international  law  arose 
at  a  time  when  the  larger  part  of  the  world  was  subject  to  monarchical  rulers  with 
whom  their  states  were  identified,  and  the  Roman  law  was  held  to  apply  between 
such  persons  as  being  the  law  common  to  them.  The  states  of  other  than  monarchical 
constitution  which  had  dealings  with  monarchs  or  with  one  another  would  have  had 
to  submit  to  the  rules  which  naturally  existed  in  the  more  general  case,  even  if,  by 
claiming  rights  as  moral  beings,  they  had  not  brought  themselves  under  the  Roman 
law  as  the  one  code  then  deemed  to  be  obligatory  on  moral  beings.  The  rules  which 
flowed  into  international  law  from  this  source  are  now  incorporated  with  the  custom- 
ary law  of  nations,  and  such  is  the  respect  still  generally  entertained  for  the  Roman 
law,  which  has  been  called  written  reason,  that  this  part  of  the  customary  law  is 
never  controverted  even  by  the  seekers  after  international  right,  although  it  may  be 
the  subject  of  some  of  the  controversies  which  are  waged  about  the  interpretation  of 
texts.  Further,  in  applying  to  international  law  the  methods  of  reasoning  which  belong 
to  jurisprudence,  it  is  the  reasoning  of  Roman  law  that  has  been  applied,  that  system 
being  common  not  only  to  the  continent  of  Europe  but  also  to  the  English  Court  of 
Admiralty."  (Westlake:  International  Law,  part  i,  Peace  [Cambridge,  1910],  pp. 

I4-IS-) 

A  very  important  organ  which  helps  to  elucidate  the  true  principles  of  international 
law  is  the  Institut  de  Droit  International  (Institute  of  International  Law).  Among  its 
members  are  some  of  the  most  learned  jurists  and  distinguished  statesmen.  It  holds 
meetings  every  year  or  two  to  discuss  international  law  as  applied  to  questions  of 
pressing  or  general  interest.  A  reporter  entrusted  with  the  preparation  of  each  subject 
for  discussion  has  previously  been  in  correspondence  with  each  member  so  that  the 
proposals  which  he  lays  before  the  meeting  are  the  results  of  mature  and  wide  con- 
sideration. After  discussion,  each  article  of  the  project  or  proposal  is  voted  upon 
with  the  amendments  suggested.  In  the  final  form  in  which  it  is  adopted,  the  project 
or  proposed  regulation  is  printed  in  the  Annual  of  the  Institute,  with  a  reasonably 
full  account  of  the  discussions,  and  carries  on  its  face  the  authority  of  the  whole 
Institute.  When,  however,  the  voting  has  been  close,  it  is  necessary  to  examine  the 
opinions  and  weigh  the  authority  of  the  separate  votes  cast.  Reason  can  never  be 
discovered  by  the  vote  of  a  majority,  though  in  a  world  where  the  strength  of  a 
majority  has  an  influence  so  far-reaching,  a  majority  vote  of  those  supposedly  or 
presumably  equal  will  itself  have  in  its  favor  a  presumption  of  reasonableness. 


xxx  INTRODUCTION 

depart  from  what  they  know  to  be  the  application  of  the  well- 
recognized  rules  of  the  law  of  nations.  By  insisting  on  the  rec- 
ognition of  some  national  viewpoint  in  return  for  a  reciprocal 
complaisance,  governments  are  able  to  apply  or  to  misapply  inter- 
national law  with  a  view  to  the  protection  of  those  vital  interests 
which  are  designated  as  policies.  It  is  necessary  always  to  bear 
in  mind  this  important  distinction  between  international  law  and 
those  other  matters  which  are  properly  characterized  as  political. 
The  superficial  observer  of  international  relations  does  not  always 
perceive  that  what  he  considers  as  law  is  often  in  reality  political 
action  stalking  in  the  guise  of  legality.  Diplomacy  is  a  practical 
system  applied  by  practical  men,  desirous  of  obtaining  practical 
results  for  their  governments,  and  they  do  not  hestitate  to  cloak 
a  political  situation  with  a  legal  phraseology  when  they  think 
it  will  help  to  secure  a  more  general  and  cheerful  acceptance.1 
Experience  will  teach  where  to  look  for  these  political  pitfalls. 

To  recapitulate,  governments  follow  a  system  of  rules  based, 
as  we  have  seen,  upon: 

(1)  The    sanctity   of   treaties   and   other   agreements   which 
must  always  be  observed  with  absolute  good  faith. 

(2)  Custom,  which   demonstrates  the  actual  practicality  of 
a  rule  of  action,  and  furnishes  thereby  a  presumption  in 
favor  of  its  reasonableness. 

(3)  Reason,  which  is  man's  only  sovereign  guide,  since  reason 
may  always  overrule  any  other  rule  —  for  all  rules  are  but 
aids  to  reason  and  abase  themselves  in  reason's  majestic 
presence.2 

The  system  of  law  thus  established  is  the  law  governing  the 

1  Diplomacy  is  concerned  with  the  carrying  on  of  the  relations  between  govern- 
ments of  independent  states.    Every  government  directs  its  diplomatic  activities  for 
the  accomplishment  of  two  main  purposes: 

First,  to  secure  the  enjoyment  of  the  rights  which  belong  to  it  under  international 
law;  and 

Second,  to  maintain  and  extend  the  particular  ideas  and  beliefs,  known  as  policies, 
which  it  cherishes.  The  latter  phase  of  diplomacy  we  can  consider  only  incidentally. 

2  The  system  of  international  law  is  mainly  contrived  to  avoid  the  dangers  of 
irresponsible  conceptions  of  reason:  as  is  well  understood,  our  reason  follows  all  too 
closely  our  wishes  and  our  passions.  Responsible  statesmen  find  their  principal  task 
to  save  their  nation  from  the  errors  in  reasoning  which  the  popular  hatred  or  enthusi- 
asm of  the  moment  may  engender. 


THE  SOURCES  OF  INTERNATIONAL  LAW  xxxi 

society  of  independent  states.1  It  may  be  more  concretely  stated 
as  a  rule  of  conduct  actually  observed  by  the  governments  of 
independent  states  in  their  intercourse  with  one  another,  and 
by  them  recognized  as  binding  and  enforceable  by  appropriate 
action. 

International  law  is  not  a  system  constructed  to  conform  with 
our  ideals  of  what  the  practice  of  governments  should  be.  How- 
ever beautiful  such  a  scheme  might  be,  it  would  have  little  rela- 
tion to  human  affairs.  It  may,  nevertheless,  be  our  duty  to  use  our 
influence  in  securing  the  recognition  by  the  states  of  the  world  of 
certain  of  these  ideals.  When  recognized  as  law  and  actually  ap- 
plied by  the  consensus  of  states,  what  was  an  ideal  or  precept 
of  morality  answers  the  tests  and  becomes  a  part  of  the  law  of 
nations. 

In  the  concrete  cases  which  follow,  the  reader  will  find  a  repeti- 
tion of  what  has  been  said  above,  though  expressed  in  varied 
language.  With  just  one  warning,  to  note  with  particular  atten- 
tion what  governments  do  rather  than  what  then:  representatives 
say,  we  leave  the  student  to  pursue  uninterruptedly  his  quest  of 
that  sublime,  far-reaching,  and  all-controlling  law  which,  govern- 
ing the  relations  of  all  the  states,  governs  thereby  every  man, 
woman,  and  child  dwelling  on  this  planet;  for  states  are  but  the 
corporate  expression  of  the  individuals  who  compose  them.  And 
as  the  science  of  the  law  of  nations  develops,  the  individual 
emerges  as  the  real  if  not  the  legal  subject  of  that  law.2 


TRIQUET  v.  BATH   (1761) 

Lord  Mansfield,  in  the  Court  of  King's  Bench: 
I  remember  hi  a  case  before  Lord  Talbot,  of  Buvot  v.  Barbut, 
upon  a  motion  to  discharge  the  defendant,  (who  was  in  execution 
for  not  performing  a  decree,)  "Because  he  was  the  agent  of  com- 

1  Westlake:  International  Law,  part  I,  Peace  [Cambridge,  1910,]  p.  i. 

*  Strictly  speaking,  the  law  of  nations  deals  only  with  the  relations  between 
governments,  and  individuals  are  not,  therefore,  its  subjects;  but  in  the  recent 
Hague  Convention  Relative  to  the  Establishment  of  an  International  Prize  Court 
(article  4),  an  individual  who  alleges  that  his  property  has  been  condemned  in  vio- 
lation of  international  Jaw  is  permitted  to  bring  his  suit  against  the  government 
responsible. 


xxxii  INTRODUCTION 

merce,  commissioned  by  the  King  of  Prussia,  and  received  here 
as  such;"  the  matter  was  very  elaborately  argued  at  the  bar;  and 
a  solemn  deliberate  opinion  given  by  the  court.  These  questions 
arose  and  were  discussed.  —  "Whether  a  minister  could,  by  any 
act  or  acts,  waive  his  privilege."  —  "Whether  being  a  trader  was 
any  objection  against  allowing  privilege  to  a  minister,  personally." 
—  "Whether  an  agent  of  commerce,  or  even  a  consul,  was  entitled 
to  the  privileges  of  a  public  minister."  —  "What  was  the  rule  of 
decision:  the  act  of  parliament;  or,  the  law  of  nations."  Lord 
Talbot  declared  a  clear  opinion  —  "That  the  law  of  nations,  in  its 
full  extent,  was  part  of  the  law  of  England."  •  —  "That  the  act  of 
parliament  was  declaratory;  and  occasioned  by  a  particular  inci- 
dent."—  "That  the  law  of  nations  was  to  be  collected  from  the 
practice  of  different  nations,  and  the  authority  of  writers." 
Accordingly,  he  argued  and  determined  from  such  instances,  and 
the  authority  of  Grotius,  Barbeyrac,  Bynkershoek,  Wicquefort, 
etc.;  there  being  no  English  writer  of  eminence,  upon  the 
subject. 

I  was  counsel  in  this  case;  and  have  a  full  note  of  it. 

(Textual  extract.  Burrage:  Reports,  vol.  m,  p.  1478.) 


THE  PAQUETE  EABANA 

The  Supreme  Court  of  the  United  States,  1899 

The  fishing  smack  Paquete  Habana,  43  feet  long  on  the  keel 
and  of  twenty-five  tons  burden,  with  a  crew  of  three  Cubans  and 
carrying  a  fishing  license  from  the  Spanish  Government,  had  been 
fishing  for  several  days  off  the  coast  of  Cuba.  On  April  25,  1898, 
she  was  captured  by  the  United  States  gunboat  Castine.  Her  cargo 
was  fresh  fish  kept  to  be  sold  alive.  The  owner  of  the  vessel  was  a 
Spanish  subject  of  Cuban  birth  living  in  Havana.  On  May  30, 
1898,  a  final  decree  of  condemnation  and  sale  was  entered,  "the 
court  not  being  satisfied  that  as  a  matter  of  law,  without  any  or- 
dinance, treaty  or  proclamation,  fishing  vessels  of  this  class  are 
exempt  from  seizure." 

On  appeal  from  the  decision  of  the  District  Court  the  case 
came  before  the  Supreme  Court.  Mr.  Justice  Gray,  after  reciting 


THE  SOURCES  OF  INTERNATIONAL  LAW          xxxiii 

the  facts  substantially  as  above  given,  disposed  of  a  technical 
objection  to  jurisdiction  of  the  court,  and  continued  as  follows: 

"We  are  then  brought  to  the  consideration  of  the  question 
whether,  upon  the  facts  appearing  in  these  records,  the  fishing 
smacks  were  subject  to  capture  by  the  armed  vessels  of  the  United 
States  during  the  recent  war  with  Spain. 

"By  an  ancient  usage  among  civilized  nations,  beginning  cen- 
turies ago,  and  gradually  ripening  into  a  rule  of  international 
law,  coast  fishing  vessels,  pursuing  their  vocation  of  catching  and 
bringing  in  fresh  fish,  have  been  recognized  as  exempt,  with  their 
cargoes  and  crews,  from  capture  as  prize  of  war. 

"This  doctrine,  however,  has  been  earnestly  contested  at  the 
bar;  and  no  complete  collection  of  the  instances  illustrating  it  is 
to  be  found,  so  far  as  we  are  aware,  in  a  single  published  work, 
although  many  are  referred  to  and  discussed  by  the  writers  on 
international  law,  notably  in  2  Ortolan,  Regies  Internationales  et 
Diplomatic  de  la  Mer  (4th  ed.),  lib.  3,  c.  2,  pp.  51-56;  in  4  Calvo, 
Droit  International  (5th  ed.),  §§  2367-73;  in  De  Boeck,  Pro- 
priete  Privee  Ennemie  sous  Pavilion  Ennemi,  §§  191-96;  and  in 
Hall,  International  Law  (4th  ed.),  §  148.  It  is  therefore  worth 
the  while  to  trace  the  history  of  the  rule,  from  the  earliest  accessi- 
ble sources,  through  the  increasing  recognition  of  it,  with  occa- 
sional setbacks,  to  what  we  may  now  justly  consider  as  its  final 
establishment  in  our  own  country  and  generally  throughout  the 
civilized  world.  .  .  . 

[Here  follows  an  extremely  interesting  review  of  the  practice 
of  governments  in  regard  to  fishing  vessels  from  the  beginning  of 
the  fifteenth  century,  with  citations  from  treaties  and  extracts 
from  the  opinions  of  judges  and  the  writings  of  authorities  on  the 
law  of  nations.  The  opinion  then  continues:] 

"Lord  Stowell's  judgment  in  The  Young  Jacob  and  Johanna 
(i  C.  Rob.  20),  above  cited,  was  much  relied  on  by  the  counsel 
for  the  United  States,  and  deserves  careful  consideration. 

"The  vessel  there  condemned  is  described  in  the  report  as  'a 
small  Dutch  fishing  vessel  taken  April,  1798,  on  her  return  from 
the  Dogger  Bank  to  Holland;'  and  Lord  Stowell,  in  delivering 
judgment,  said:  'In  former  wars,  it  has  not  been  usual  to  make 
captures  of  these  small  fishing  vessels;  but  this  rule  was  a  rule  of 


xxxiv  INTRODUCTION 

comity  only,  and  not  of  legal  decision;  it  has  prevailed  from  views 
of  mutual  accommodation  between  neighboring  countries,  and 
from  tenderness  to  a  poor  and  industrious  order  of  people.  In  the 
present  war  there  has,  I  presume,  been  sufficient  reason  for  chang- 
ing this  mode  of  treatment,  and,  as  they  are  brought  before 
me  for  my  judgment,  they  must  be  referred  to  the  general  prin- 
ciples of  this  court;  they  fall  under  the  character  and  description 
of  the  last  class  of  cases; 


in  the  pn^myjgjja.H^.'  And  he  added:  'It  is  a 
farther  satisfaction  to  me  in  giving  this  judgment  to  observe  that 
the  facts  also  bear  strong  marks  of  a  false  and  fraudulent  trans- 
action.' 

"Both  the  capture  and  condemnation  were  within  a  year  after 
the  order  of  the  English  Government  of  January  24,  1798,  in- 
structing the  commanders  of  its  ships  to  seize  French  and  Dutch 
fishing  vessels,  and  before  any  revocation  of  that  order.  Lord 
Stowell's  judgment  shows  that  his  decision  was  based  upon  the 
order  of  1798,  as  well  as  upon  strong  evidence  of  fraud.  Nothing 
more  was  adjudged  in  the  case. 

"But  some  expressions  hi  his  opinion  have  been  given  so  much 
weight  by  English  writers,  that  it  may  be  well  to  examine  them 
particularly.  The  opinion  begins  by  admitting  the  known  custom 
in  former  wars  not  to  capture  such  vessels  —  adding,  however, 
'but  this  was  a  rule  of  comity  only,  and  not  of  legal  decision.' 
Assuming  the  phrase  'legal  decision'  to  have  been  there  used,  in 
the  sense  in  which  courts  are  accustomed  to  use  it,  as  equivalent  to 
'judicial  decision,'  it  is  true  that,  so  far  as  appears,  there  had  been 
no  such  decision  on  the  point  in  England.  The  word  'comity' 
was  apparently  used  by  Lord  Stowell  as  synonymous  with  cour- 
tesy or  good  will.  But  the  period  of  a  hundred  years  which  has 
since  elapsed  is  amply  sufficient  to  have  enabled  what  originally 
may  have  rested  in  custom  or  comity,  courtesy  or  concession,  to 
grow,  by  the  general  assent  of  civilized  nations,  into  a  settled  rule 
of  international  law.  As  well  said  by  Sir  James  Mackintosh: 
'In  the  present  century  a  slow  and  silent,  but  very  substantial 
mitigation  has  taken  place  in  the  practice  of  war;  and  in  propor- 
tion as  that  mitigated  practice  has  received  the  sanction  of  tune, 
it  is  raised  from  the  rank  of  mere  usage,  and  becomes  part  of  the 


THE  SOURCES  OF  INTERNATIONAL  LAW  xxxv 

law  of  nations.'    (Discourse  on  the  Law  of  Nations,  38;  i  Miscel- 
laneous Works,  360.) 

"The  French  prize  tribunals,  both  before  and  after  Lord  Stow- 
ell's  decision,  took  a  wholly  different  view  of  the  general  question. 
In  1780,  as  already  mentioned,  an  order  in  council  of  Louis  XVI 
had  declared  illegal  the  capture  by  a  French  cruiser  of  The  John 
and  Sarah,  an  English  vessel,  coming  from  Holland,  laden  with 
fresh  fish.  And  on  May  17,  1801,  where  a  Portuguese  fishing  ves- 
sel, with  her  cargo  of  fish,  having  no  more  crew  than  was  needed 
for  her  management,  and  for  serving  the  nets,  on  a  trip  of  several 
days,  had  been  captured  in  April,  1801,  by  a  French  cruiser,  three 
leagues  off  the  coast  of  Portugal,  the  Council  of  Prizes  held  that 
the  capture  was  contrary  to  '  the  principles  of  humanity,  and  the 
maxims  of  international  law/  and  decreed  that  the  vessel,  with 
the  fish  on  board,  or  the  net  proceeds  of  any  that  had  been  sold, 
should  be  restored  to  her  master.  (La  Nostra  Segnora  de  la 
Piedad,  25  Merlin,  Jurisprudence,  Prise  Maritime,  §  3,  art.  i,  3; 
S.  C.  i  Pistoye  et  Duverdy,  Prises  Maritimes,  331;  2  De  Cussy, 
Droit  Maritime,  166.)  .  .  . 

"This  review  of  the  precedents  and  authorities  on  the  subject 
appears  to  us  abundantly  to  demonstrate  that  at  the  present  day, 
by  the  general  consent  of  the  civilized  nations  of  the  world,  and 
independently  of  any  express  treaty  or  other  public  act,  it  is  an 
established  rule  of  international  law,  founded  on  considerations 
of  humanity  to  a  poor  and  industrious  order  of  men,  and  of  the 
mutual  convenience  of  belligerent  states,  that] coast  fishing  ves- 
selsT  with  their  implements  and  supplies,  cargoes  and  crews,  un- 
armed, anH  hnnpcjt1ypiirci"'r'p  their  peaceful  calling  of  catching  and 
bringing  in  fresh  fisb,  arp  pyprripf,  from  qipfnre  a.s,  prize  of  war. 

"The  exemption,  of  course,  does  not  apply  to  coast  fishermen  2 
or  their  vessels,  if  employed  for  a  warlike  purpose,  or  in  such  a  L 
way  as  to  give  aid  or  information  to  the  enemy;  nor  when  mili- 
tary or  naval  operations  create  a  necessity  to  which  all  private 
interests  must  give  way. 

"Nor  has  the  exemption  been  extended  to  ships  or  vessels  em-  ^ 
ployed  on  the  high  sea  in  taking  whales  or  seals,  or  cod  or  other  i 
fish  which  are  not  brought  fresh  to  market,  but  are  salted  or  other-  ' 
wise  cured  and  made  a  regular  article  of  commerce. 


xxxvi  INTRODUCTION 

"This  rule  of  international  law  is  one  which  prize  courts,  ad- 
ministering the  law  of  nations,  are  bound  to  take  judicial  notice 
of,  and  to  give  effect  to,  in  the  absence  of  any  treaty  or  other  pub- 
lic act  of  their  own  government  in  relation  to  the  matter.  .  .  . 

"Upon  the  facts  proved  in  either  case,  it  is  the  duty  of  this 
court,  sitting  as  the  highest  prize  court  of  the  United  States,  and 
administering  the  law  of  nations,  tpjdeclare  and  adjudge  that  the 
raptrrrp__wg.ci  unlawful,  and  without  probable  cause;  and  it  is 
therefore^Jii_each_ca.se, 

~~~77Ordered,  that  the  decree  of  the  District  Court  be  reversed, 
and  the  proceeds  of  the  sale  of  the  vessel,  together  with  the  pro- 
ceeds of  any  sale  of  her  cargo,  be  restored  to  the  claimant,  with 
damages  and  costs." 

(Extract  from  United  States  Reports  [Cases  adjudged  in  the 
Supreme  Court  at  October  Term,  1899.  New  York,  1900],  vol. 
175,  pp.  677-721.  The  statement  of  facts  is  condensed.) 


PART   I 

DIPLOMACY:      THE   INTERCOURSE   OF   STATES 


INTERNATIONAL  CASES 


CHAPTER   I 

THE  RIGHTS  AND  DUTIES  OF  THE  AGENTS  OF 
INTERNATIONAL  INTERCOURSE 


§  i.  DIPLOMATIC  REPRESENTATIVES 


CASE   OF   MATTUEOF,   AMBASSADOR   OF    PETER 
THE  GREAT   (1708) 

IN  London  in  the  summer  of  1708  "several  turbulent  and  dis- 
orderly persons  ...  in  a  most  outrageous  manner  insulted  the 
person  of  his  excellency,  Andrew  Artemonowitz  Mattueof,  am- 
bassador extraordinary  of  His  Tsarish  Majesty,  Emperor  of 
Great  Russia,  ...  by  arresting  him  and  taking  him  by  vio- 
lence out  of  his  coach  in  the  public  street,  and  detaining  him  in 
custody  for  several  hours,  .  .  .  contrary  to  the  law  of  nations, 
and  in  prejudice  of  the  rights  and  privileges"  of  ambassadors  and 
other  public  ministers.1  The  arrest  was  made  on  warrant, 
by  officers  of  the  police,  at  the  instance  of  certain  London  trades- 
people, to  whom  the  ambassador,  then  about  to  terminate  his 
residence  hi  England,  owed  altogether  some  three  hundred  pounds. 
English  gentlemen  furnished  bail,  and  Queen  Anne,  as  soon  as 
she  heard  of  the  mischance,  dispatched  her  Secretary  of  State  to 
wait  upon  the  ambassador  and  assure  him  of  Her  Majesty's 
sense  of  the  outrage  and  of  her  intention  to  prosecute  according 
to  the  full  rigor  of  the  law  all  those  who  should  be  found  implicated. 
The  ambassador,  however,  demanded  a  more  striking  and  summary 
exoneration  and  left  London  hastily,  as  soon  as  he  received  his 
passports,  without  asking  for  his  letters  of  recall,  and  without 
accepting  the  customary  gift  from  the  Queen  or  the  yacht  which 

1  "  An  act  for  preserving  the  privileges  of  ambassadors,  and  other  public  ministers 
of  foreign  princes  and  states."  (Statutes  at  Large  from  the  second  to  the  eighth  year  of 
Queen  Anne,  vol.  xi,  pp.  487-89.) 


4  DIPLOMATIC  REPRESENTATIVES 

she  had  caused  to  be  offered  to  him.  The  Queen  and  her  ministers 
seem  to  have  made  every  effort  in  this  case  to  fulfill  their  obliga- 
tions under  international  law.  The  tradesmen,  the  bailiffs,  the 
justices  responsible  for  issuing  the  warrant,  were  arrested  and 
when,  on  the  25th  of  February  of  the  year  following  they  came 
to  trial  before  the  Queen's  Bench,  eminent  lawyers  pleaded  long 
and  learnedly  for  Her  Majesty  before  a  distinguished  jury  in 
the  presence  of  both  Her  Majesty's  Secretaries  of  State  and  many 
other  persons  of  rank  and  authority.  A  verdict  of  guilty  was 
found  but  "the  case  being  so  extraordinary,  of  very  great  im- 
portance, altogether  new,  and  without  precedent"  in  the  courts 
of  England,  —  so  it  was  officially  communicated  to  the  Russian 
Ambassador,  —  the  Lord  Chief  Justice  hesitated  to  pronounce 
sentence  until  in  special  session  of  the  term  following  it  should 
be  determined  what  penalties  might  properly  be  inflicted  on 
those  found  guilty  in  cases  of  this  nature.  Moreover,  when 
Parliament  convened  and  a  general  pardon  was  declared  to  all 
persons  guilty  of  criminal  acts  from  the  year  1695,  "even  to  those 
who  jn  the  most  enormous  manner  might  have  conspired" 
against  the  "sacred  person"  of  the  Queen,  exception  was  made  of 
those  concerned  in  the  attack  on  the  Russian  Ambassador. 
By  special  act  of  Parliament  also,  declaration  was  made,  "as 
authentic  as  possible,  of  the  just  horror"  which  British  subjects 
in  general  had  "against  this  violent  insult" — to  employ  the 
words  later  used  by  the  Queen — "and  all  the  acts  and  proceed- 
ings which  relate  to  the  arrest  of  the  person  of  Your  Impe- 
rial Majesty's  Ambassador  are  annulled  and  razed  out  of  the 
registers  of  our  courts  of  justice,  and  those  who  had  a  share 
therein  are  branded  as  infamous  criminals  and  obnoxious  to  the 
laws  which  were  then  in  force.  And  if  any  person  hereafter 
durst  commit  the  like  offense,  or  any  ways  violate  the  privileges 
of  ambassadors  and  other  foreign  ministers,  they  will  be  liable 
to  the  most  severe  penalties  and  punishments  which  the  arbi- 
trary power  of  the  judges  shall  think  fit  to  inflict  upon  them, 
and  to  which  no  bounds  are  given  in  this  new  act.  So  that  all 
insults  of  this  nature  will  be  prevented  for  the  future,  and  the 
security  which  all  princes'  ministers  ought  to  enjoy  will  be  firmly 
established  and  preserved  by  this  famous  law." 


CASE  OF  MATTUEOF  5 

All  these  efforts  at  pacification  were  duly  communicated  to 
M.  Mattueof,  with  many  expressions  of  regret  and  indignation 
at  the  outrage  and  many  assurances  of  zealous  regard  for  the 
honor  of  Russia  and  her  ambassador.  Representations  were 
made  also  directly  to  Peter  the  Great:  special  instructions  had 
been  dispatched  to  Lord  Whitworth,  English  Ambassador  at  Mos- 
cow, immediately  after  the  outrage,  and  Queen  Anne  with  her 
own  hand  had  addressed  a  letter  to  His  Tsarish  Majesty. 

Russia,  however,  remained  firm  hi  her  demand  for  a  reparation 
as  extraordinary  as  had  been  the  insult,  —  "  that  a  capital  punish- 
ment, according  to  the  rigor  of  the  law,  ...  or  at  least  such  an 
one  as  is  adequate  to  the  nature  of  the  affront,"  be  inflicted  on 
all  "  the  accomplices  of  the  crime; "  —  and  hi  the  course  of  the  cor- 
respondence cited  as  a  case  in  point  the  extra-legal  action  taken 
by  Venice  a  short  time  before  in  summarily  committing  to  pillory 
and  galleys  certain  of  her  own  customs  officials  against  whom  the 
English  Ambassador,  Lord  Manchester,  indirectly  had  cause  for 
complaint.  In  both  these  cases,  Russia  insisted,  it  was  not  local 
law,  but  the  more  sacred  laws  of  nations  that  had  been  violated,  — 
a  consideration  making  inapplicable  the  usual  legal  processes,  and 
railing  for  action  more  sudden  and  drastic.  The  diplomatic 
corps  of  the  foreign  ministers  then  in  London  sided  with  the 
Russian  Ambassador  and  before  its  enactment  formally  pro- 
tested against  the  proposed  Parliamentary  provision  touching 
the  privileges  of  ambassadors,  in  that  it  rested  those  privileges 
not  on  the  immemorial  rights  of  nations,  but,  tacitly,  on  local 
law  merely,  which  subsequent  acts  of  Parliament  might  alter  or 
even  annul. 

The  proposed  bill  was  modified  in  this  particular,1  but  those  who 

1  The  preamble  of  the  act  as  it  finally  became  law,  after  rehearsing  the  indigni- 
ties to  which  the  Russian  Ambassador  was  subjected,  contained,  in  accordance  with 
the  memorial  presented  by  the  foreign  ministers,  the  following  clauses  denning  the 
incident  as  "contrary  to  the  law  of  nations,  and  in  prejudice  to  the  rights  and  privi- 
leges which  ambassadors  and  other  public  ministers,  authorized  and  received  as 
such,  have  at  all  times  been  thereby  possessed  of,  and  ought  to  be  kept  sacred  and 
inviolable."  The  act  was  in  its  inception,  therefore,  modified  so  as  to  make  it  dearly 
an  act  declaratory  of  the  law  of  nations.  It  was  so  understood  by  Queen  Anne,  who, 
in  her  letter  of  August,  1709,  to  the  Tsar,  speaks  of  it  as  "a  declaration  as  authentic 
as  possible  of  the  just  horror  which  our  subjects  in  general  have  against  this  violent 
insult;"  and  later  refers  to  those  responsible  for  the  incident  as  obnoxious  "to  the 
laws  which  were  then  in  force."  The  same  view  was  taken  of  it  by  the  Russian 


6  DIPLOMATIC  REPRESENTATIVES 

had  been  found  guilty  in  the  attack  upon  the  ambassador  were  not 
punished.  The  laws  were  acknowledged  to  be  inadequate  to  the 
situation.  Another  method  was  hit  upon,  therefore,  for  affording 
Russia  that  undoubted  satisfaction  which  for  many  months  she 
had  been  so  persistently  demanding.  In  the  six  weeks'  jubilee 
following  the  Tsar's  return  from  his  victorious  campaign  against 
Charles  XII,  Her  Majesty's  Ambassador  at  the  Russian  Court, 
specially  invested  for  this  single  mission  with  extraordinary  and 
plenipotentiary  powers,  apologized  in  open  audience  in  the 
Queen's  name  to  Peter  the  Great.  Even  his  words  of  address  were 
significant.1  "Most  High  and  Most  Potent  Emperor!"  he  began; 
and  continuing  after  a  brief  rehearsal  of  the  case,  he  testified  to 
"the  sorrow  and  the  just  and  high  abhorrence"  which  the  Queen 
had  for  "that  rash  deed"  against  the  Russian  Ambassador.  He 
begged  excuse  for  the  defect  and  insufficiency  of  the  ancient 
British  Constitution,  most  instantly  desiring  that,  "entirely 
putting  the  same  in  oblivion,"  His  Tsarish  Majesty  might "  again 
generously  continue"  his  high  affection  to  the  Queen  and  to 
her  subjects. 

At  the  conclusion  of  this  address,  which  was  spoken  in  English, 
translations  in  German  and  Russian  were  read  in  a  loud  voice. 
The  ambassador  then  placed  in  the  Emperor's  hands  an  autograph 
letter  from  the  Queen,  which  the  Emperor  entrusted  to  his  Grand 
Chancellor  before  making  a  brief  speech  of  acknowledgment.2 

Ambassador,  who  could  not  conceive,  therefore,  how  it  contributed  "in  any  wise  to 
the  satisfaction  ...  in  debate;  because  the  sacred  characters  of  ambassadors  have 
been  in  all  times  accounted  inviolable  among  all  the  powers  before  that  declaration, 
which  being  but  a  particular  law,"  could  "only  serve  to  justify  the  honor"  of  the 
British  nation.  In  1737,  also,  when  Barbuit's  case  came  before  Lord  Talbot  for  de- 
cision, the  act  was  defined  by  him  as  "only  declaratory  of  the  ancient  universal  jus 
gentium"  (see  §  2,  p.  20);  Lord  Mansfield,  in  1761,  in  the  case  of  Triquet  et  al.  v.  Bath, 
quoted  Lord  Talbot  as  declaring  a  clear  opinion  "That  the  law  of  nations,  in  its 
full  extent,  was  part  of  the  law  of  England.  .  .  .  That  the  Act  of  Parliament  was  de- 
claratory; and  occasioned  by  a  particular  incident"  (see  Triquet  v.  Bath  [1761],  p. 
xxxi);  and  Lord  Campbell,  La  1851,  in  rendering  an  opinion  in  the  case  of  De  Haber 
v.  Queen  of  Portugal,  said  of  the  statute  that  it  "has  always  been  said  to  be  merely 
declaratory  of  the  law  of  nations,  recognized  and  enforced  as  such  by  our  munici- 
pal law."  (Queen's  Bench  Reports,  new  series,  vol.  xvn  [London,  1855],  p.  207.) 

1  De  Martens  states  that  it  was  on  this  occasion  (February,  1710)  that  Great 
Britain  first  gave  the  title  of  Emperor  to  the  Tsar.  The  word  was  used,  however,  in 
the  act  of  Parliament  passed  in  connection  with  this  case,  April  21, 1709  (vide  supra). 

1  Blacks  tone  records  that  a  copy  of  the  Act  of  Parliament,  "elegantly  engrossed 
and  illuminated,"  was  at  this  same  time  presented  to  the  Tsar.  (Commentaries 


THE  CASE  OF  GALLATTN'S  COACHMAN  7 

It  was  on  February  9,  1710,  at  a  conference  of  the  Emperor's 
ministers  presided  over  by  this  same  Grand  Chancellor,  that  suit- 
able conclusions  to  the  whole  matter  were  formulated.  It  was 
arranged  that  M.  Mattueof,  then  Ambassador  at  The  Hague, 
should  advise  Queen  Anne  of  what  had  taken  place  at  the  Rus- 
sian Court  and  of  the  gracious  clemency  of  the  Tsar  and  of  his 
desire  that  Her  Majesty  would  pardon  the  offenders.  It  was  re- 
quested, however,  that  Her  Majesty  herself  write  an  appropriate 
letter  to  M.  Mattueof,  upon  receipt  of  which  —  so  the  arrangement 
ran  —  M.  Mattueof  would  in  due  form  ask  for  his  letters  of  recall, 
which  he  had  not  obtained  in  his  haste  to  leave  England  some 
eighteen  months  before.  The  ambassador,  further,  was  to  be  re- 
imbursed for  all  the  costs  and  damages  which  he  had  been 
"obliged  to  be  at,  and  to  suffer,  on  account  of  the  said  affront." 
And  finally,  when  all  these  preliminaries  had  been  effected,  it 
was  agreed  that  Peter  the  Great  should  acquaint  the  Queen  that 
he  was  "content  with  the  foresaid  satisfaction." 

(The  History  of  the  Reign  of  Queen  Anne,  digested  into  Annals, 
year  the  seventh  [London,  1709],  pp.  233-42,  326-36;  year  the 
eighth  [London,  1710],  pp.  141-58;  Charles  de  Martens:  Causes 
Celebres  du  Droit  des  Gens  [Leipsic  and  Paris,  1827],  vol.  I, 
pp.  47-74-) 


THE  CASE  OF  GALLATIN'S  COACHMAN  (1827) 

DURING  Mr.  Gallatin's  mission  at  London,  in  1827,  an  incident 
occurred  involving  a  question  of  diplomatic  privileges,  which 
led  to  an  exposition  of  the  British  views  on  the  rights  of  embassy. 
His  coachman  was  arrested  in  his  stable  on  a  charge  of  assault, 
on  a  warrant  from  a  magistrate.  The  subject  having  been  in- 
formally brought  to  the  notice  of  the  Foreign  Office,  a  communi- 
cation was  addressed  to  the  secretary  of  the  American  Legation 
by  the  Under-Secretary  of  State,  Mr.  Backhouse,  May  18,  1827, 
in  which  he  informed  Mr.  Lawrence  of  the  result  of  a  reference 
made,  by  order  of  Lord  Dudley,  to  the  law  officers  of  the  Crown. 
In  it  it  is  said  that  "the  statute  of  the  7th  Anne,  chap.  12,  has 

[London,  1857],  vol.  i,  p.  249.)   In  the  Annals  of  Queen  Anne  (vol.  vn,  p.  327)  it  is 
noted  that  the  Commons  "ordered  the  bill  to  be  engrossed." 


8  DIPLOMATIC  REPRESENTATIVES 

been  considered  in  all  but  the  penal  parts  of  it  nothing  more  than 
a  declaration  of  the  law  of  nations;  and  it  is  held  that  neither  that 
law,  nor  any  construction  that  can  properly  be  put  upon  the  stat- 
ute, extends  to  protect  the  mere  servants  of  ambassadors  from 
arrest  upon  criminal  charges,  although  the  ambassador  himself, 
and  probably  those  who  may  be  named  in  his  mission  are,  by 
the  best  opinions,  though  not  by  the  uniform  practice  of  this 
country,  exempt  from  every  sort  of  prosecution,  criminal  and  civil. 
His  lordship  will  take  care  that  the  magistrates  are  apprised, 
through  the  proper  channel,  of  the  disapprobation  of  His  Majesty's 
Government  of  the  mode  in  which  the  warrant  was  executed  in 
the  present  instance,  and  are  further  informed  of  the  expectation 
of  His  Majesty's  Government  that,  whenever  the  servant  of  a 
foreign  minister  is  charged  with  a  misdemeanor,  the  magistrate 
shall  take  proper  measures  for  apprising  the  minister,  either  by 
personal  communication  with  him  or  through  the  foreign  office, 
of  the  fact  of  a  warrant  being  issued,  before  any  attempt  is 
made  to  execute  it,  in  order  that  the  minister's  convenience  may 
be  consulted  as  to  the  time  and  manner  in  which  such  warrant 
shall  be  put  in  execution." 

An  official  character  was  given  to  the  preceding  communication 
by  a  note  from  Earl  Dudley,  Secretary  of  State  for  Foreign  Af- 
fairs, June  2,  1827,  in  which  he  says  that  it  is  only  necessary  for 
him  to  "confirm  the  statement  contained  in  the  private  note  of 
Mr.  Backhouse,  referred  to  by  Mr.  Gallatin,  as  to  the  law  and 
practice  of  this  country  upon  the  questions  of  privilege  arising 
out  of  the  arrest  of  Mr.  Gallatin's  coachman,  and  to  supply  an 
omission  in  that  statement,  with  respect  to  the  question  of  the  sup- 
posed inviolability  of  the  premises  occupied  by  a  foreign  minister. 
He  is  not  aware  of  any  instance,  since  the  abolition  of  sanctuary  in 
England,  where  it  has  been  held  that  the  premises  occupied  by  an 
ambassador  are  entitled  to  such  a  privilege  by  the  law  of  nations." 

He  adds  that  courtesy  requires  that  their  houses  should  not  be 
entered  without  permission  being  first  solicited  in  cases  where  no 
urgent  necessity  presses  for  the  immediate  capture  of  an  offender. 

(Moore:  Digest  of  International  Law,  vol.  iv,  pp.  656-57;  Whea- 
ton:  Elements  of  International  Law  [2d  annotated  edition  by  Law- 
rence, London,  1863],  pp.  1006-07.) 


SOULE'S  CASE 


SOULfi'S   CASE   (1854) 

IN  October,  1854,  Mr.  Soule,  American  Minister  at  Madrid, 
who  had  been  attending  the  Ostend  Conference,  arrived  at  Calais, 
in  France,  intending  to  return  to  his  post  by  way  of  Paris.  On  his 
arrival  at  Calais  he  was  provisionally  stopped  under  an  order  of 
the  Minister  of  the  Interior  that  he  should  not  be  allowed  to 
"penetrate  into  France"  without  the  knowledge  of  the  govern- 
ment. Mr.  Soule,  who  was  a  native  of  France  and  a  naturalized 
citizen  of  the  United  States,  was  currently  reported  to  have  made 
speeches  adverse  to  the  government  of  Louis  Napoleon  and  to 
have  held  communication  with  some  of  its  adversaries.  Further- 
more, the  American  Minister,  while  at  Madrid,  had  engaged  the 
French  Ambassador  in  a  duel.  On  being  stopped  at  Calais,  Mr. 
Soule  straightway  left  France  to  return  to  his  post  by  way  of 
England  and  Portugal.  Mr.  Mason,  American  Minister  at  Paris, 
on  hearing  of  the  action  of  the  authorities  at  Calais,  immediately 
addressed  a  protest  to  the  French  Government,  not  only  against 
the  interruption  of  Mr.  Soule's  journey,  but  also  against  the  re- 
fusal, as  he  supposed,  of  the  French  Government  to  permit  Mr. 
Soule  to  pass  through  that  country.  M.  Drouyn  de  1'Huys, 
then  Minister  of  Foreign  Affairs,  replied  that  the  government  of 
the  Emperor  had  "not  wished  .  .  .  to  prevent  an  envoy  of  the 
United  States  crossing  French  territory  to  go  to  his  post  in  order 
to  acquit  himself  of  the  commission  with  which  he  was  charged 
by  his  government,"  but  that  "between  this  simple  passage  and 
the  sojourn  of  a  foreigner,  whose  antecedents  have  awakened,  I 
regret  to  say,  the  attention  of  the  authorities  invested  with  the 
duty  of  securing  the  public  order  of  the  country,  there  exists  a 
difference,  which  the  Minister  of  the  Interior  had  to  appreciate;" 
that  "if  Mr.  Soul6  was  going  immediately  and  directly  to  Madrid 
the  route  of  France  was  open  to  him;"  that  if,  on  the  contrary, 
he  "intended  to  go  to  Paris  with  a  view  of  tarrying  there,  that 
privilege  was  not  accorded  to  him.  It  was,  therefore,  necessary  to 
consult  him  as  to  his  intentions,  and  it  was  he  who  did  not  give 
the  time  for  doing  this."  (Modified  extract  from  Moore:  Digest 
of  International  Law,  vol.  rv,  pp.  557-58.) 


10  DIPLOMATIC  REPRESENTATIVES 

In  his  second  annual  message  of  December  4,  1854,  President 
Pierce,  after  referring  to  the  traditional  friendship  with  France 
and  alluding  to  the  settlement  of  the  case  of  the  French  Consul 
at  San  Francisco,1  continued:  " Subsequent  misunderstanding 
arose  on  the  subject  of  the  French  Government  having,  as  it 
appeared,  abruptly  excluded  the  American  Minister  to  Spain 
from  passing  through  France  on  his  way  from  London  to  Madrid. 
But  that  government  has  unequivocally  disavowed  any  design 
to  deny  the  right  of  transit  to  the  Minister  of  the  United  States, 
and  after  explanations  to  this  effect  he  has  resumed  his  journey 
and  actually  returned  through  France  to  Spam."  (Messages  and 
Papers  of  the  Presidents  1789-1897,  compiled  by  James  D.  Rich- 
ardson [Washington,  1897],  vol.  v,  p.  278.) 


THE  LORD  SACKVILLE  WEST  INCIDENT  (1888) 

ON  September  12,  1888,  Lord  Sackville  West,  British  Minister 
to  the  United  States,  while  at  Beverly,  Massachusetts,  received 
a  letter  from  Pomona,  California,  from  one  who  signed  himself 
"Charles  F.  Murchison,"  stating  that  he  was  a  naturalized  Ameri- 
can of  English  birth;  that  he,  as  well  as  hundreds  of  other  recently 
naturalized  Americans  from  England,  was  in  a  quandary  as  to 
how  to  cast  his  vote  at  the  approaching  presidential  election. 
President  Cleveland,  he  said,  apparently  had  always  been  very 
friendly  and  favorable  towards  Great  Britain,  but  his  recent  mes- 
sage to  Congress,  following  close  upon  the  rejection  of  the  fisher- 
ies treaty,  had  alarmed  him  to  such  an  extent  that  he  sought  ad- 
vice from  one  who  would  know  just  how  these  many  votes  might 
be  cast  to  the  greatest  advantage  of  the  mother  country,  which 
was  still  dearest  to  them. 

Although,  as  Lord  Sackville  afterward  admitted,  the  writer  of 
this  letter  was  wholly  unknown  to  him,  and  although  it  was  evi- 
dent that  any  advice  sent,  even  though  his  correspondent  had 
agreed  to  keep  the  source  of  his  knowledge  a  secret,  was  intended 
to  be  used  broadcast  to  influence  votes  for  or  against  Cleveland, 
Lord  Sackville  answered  the  letter  on  the  following  day:  "You 

1  See  Ditton's  Case,  post,  p.  31. 


THE  LORD  SACKVILLE  WEST  INCIDENT  II 

are  probably  aware,"  he  said,  "that  any  political  party  which 
openly  favored  the  mother  country  at  the  present  moment  would 
lose  popularity,  and  that  the  party  in  power  is  fully  aware  of  this 
fact;"  and  in  respect  to  the  "questions  with  Canada,  which  have 
been  unfortunately  reopened  since  the  rejection  of  the  [fish- 
eries] treaty  by  the  Republican  majority  in  the  Senate,  and  by  the 
President's  message  to  which  you  allude,  allowance  must  there- 
fore be  made  for  the  political  situation  as  regards  the  presiden- 
tial election."  In  his  letter  he  inclosed  a  clipping  from  the  New 
York  Times  which  advised  electors  to  vote  for  Mr.  Cleveland's 
reelection. 

As  Secretary  of  State  Bayard  said  in  his  note  of  January  30, 
1889,  "Lord  Sackville  was  thus  applied  to  in  unmistakable  terms 
to  interfere  in  the  political  affairs  of  the  United  States,  and  at 
a  time  of  intense  public  feeling,  when  issues  of  deep  moment  were 
awaiting  popular  decision." 

The  letter  was  a  political  trick  intended  to  embarrass  the  Cleve- 
land Administration  and  discredit  it  in  the  eyes  of  thousands  of 
voters,  especially  the  Irish,  and  the  correspondence  was  made 
public  in  the  last  days  of  the  campaign,  about  October  25th. 
Lord  Sackville  was  at  once  sought  out  by  the  various  newspapers, 
and  he  readily  confirmed  the  authenticity  of  the  letters,  making 
no  effort  to  modify  the  impugnments  of  the  action  of  the  gov- 
ernment which  he  had  at  least  tacitly  agreed  to  in  his  answer, 
in  some  cases  emphasizing  them. 

Secretary  Bayard  at  once  expressed  to  Lord  Salisbury,  British 
Secretary  for  Foreign  Affairs,  the  desire  of  this  government  that 
Lord  Sackville  be  recalled.  Lord  Salisbury  declined  to  act  until  in 
receipt  of  the  precise  language  of  Lord  Sackville  and  his  explana- 
tion. Without  waiting  further,  the  President  authorized  Secre- 
tary Bayard  to  inform  Lord  Sackville  that  he  had  become  con- 
vinced that  it  would  be  incompatible  with  the  best  interests,  and 
detrimental  to  the  good  relations,  of  both  governments  that  he 
should  any  longer  hold  his  official  position  in  the  United  States, 
and  he  further  authorized  the  Secretary  to  send  the  Minister  his 
passports. 

This  action  by  the  United  States  Government  raised  a  storm 
of  protest  from  the  British  press,  although  it  had,  up  to  the 


12  DIPLOMATIC  REPRESENTATIVES 

time  of  the  actual  dismissal,  been  unanimous  in  its  condemnation 
of  interference  in  the  domestic  affairs  of  our  government,  and 
had  insistently  pointed  out  that  Lord  Sackville  could  no  longer 
be  of  any  service  to  Great  Britain  in  America. 

The  position  of  the  Government  of  the  United  States  was  stated 
by  Mr.  Phelps,  United  States  Minister  to  Great  Britain,  in  his 
note  of  December  4  to  Lord  Salisbury:  "In  asking  from  Her  Ma- 
jesty's Government  the  recall  or  withdrawal  of  its  minister,  upon 
a  representation  of  the  general  purport  of  the  letter  and  statements 
above  mentioned,  the  Government  of  the  United  States  assumed 
that  such  request  would  be  sufficient  for  that  purpose,  whatever 
consideration  the  reasons  for  it  might  afterwards  demand  or 
receive.  It  was  believed  that  the  acceptance  or  retention  of  a 
minister  was  a  question  solely  to  be  determined,  either  with  or 
without  the  assignment  of  reasons,  by  the  government  to  which 
he  was  accredited." 

Replying  to  this,  the  Marquis  of  Salisbury  observed: 

"Her  Majesty's  Government  are  unable  to  assent  to  the  view 
of  international  usage  which  you  have  here  laid  down.  It  is,  of 
course,  open  to  any  government,  on  its  own  responsibility,  sud- 
denly to  terminate  its  diplomatic  relations  with  any  other  state 
or  with  any  particular  minister  of  any  other  state.  But  it  has  no 
claim  to  demand  that  the  other  state  shall  make  itself  the  instru- 
ment of  that  proceeding,  or  concur  in  it,  unless  that  state  is  satis- 
fied by  reasons,  duly  produced,  of  the  justice  of  the  grounds  on 
which  the  demand  is  made. 

"The  principles  which  govern  international  relations  on  this 
subject  appear  to  Her  Majesty's  Government  to  have  been  ac- 
curately laid  down  by  Lord  Palmerston  on  the  occasion  of  Sir 
Henry  Bulwer's  sudden  dismissal  from  the  court  of  Madrid  in 
1848: 

"'The  Duke  of  Sotomayor,  in  treating  of  that  matter, 
seems  to  argue  as  if  every  government  was  entitled  to  obtain 
the  recall  of  any  foreign  minister  whenever,  for  reasons  of 
its  own,  it  might  wish  that  he  should  be  removed;  but  this  is 
a  doctrine  to  which  I  can  by  no  means  assent. 

"'It  is  quite  true,  as  said  by  the  Duke  of  Sotomayor,  that 
the  law  of  nations  and  international  usage  may  permit  a 


THE  LORD  SACKVILLE  WEST  INCIDENT  13 

government  to  make  such  a  demand;  but  the  law  of  nations 
and  international  usage  also  entitle  the  government  to  whom 
such  a  request  may  be  preferred  to  decline  to  comply  with 
it.  I  do  not  mean  to  say  that  if  a  foreign  government  is 
able  to  state  to  the  Government  of  Her  Majesty  grave  and 
weighty  reasons  why  the  British  Minister  accredited  to  such 
government  should  be  removed,  Her  Majesty's  Government 
would  not  feel  it  to  be  their  duty  to  take  such  representations 
into  their  serious  consideration,  and  to  weigh  them  with  all 
the  attention  which  they  might  deserve.  But  it  must  rest 
with  the  British  Government  in  such  a  case  to  determine 
whether  there  is  or  is  not  any  just  cause  of  complaint  against 
the  British  diplomatic  agent,  and  whether  the  dignity  and 
interests  of  Great  Britain  would  be  best  consulted  by  with- 
drawing him,  or  by  maintaining  him  at  his  post.'" 

In  discussing  this  position  of  the  British  Foreign  Secretary  and 
the  case  of  Sir  Henry  Bulwer,  Secretary  Bayard  said: 

"The  case  of  Lord  Sackville  is  wholly  dissimilar.  In  the  former 
the  objection  of  Spain  was  to  the  action  of  Lord  Palmerston 
and  presumptively  of  the  ministry  of  Great  Britain,  of  which 
Sir  Henry  Bulwer  was  but  the  channel  of  communication,  and 
throughout  the  entire  transaction  Sir  Henry  Bulwer  received 
the  entire  approval  of  his  lordship. 

"The  offense  of  Lord  Sackville  consisted  in  personal  misconduct, 
wholly  inconsistent  with  his  official  duty  and  relations,  of  which 
no  suggestion  of  approval  by  his  government  has  yet  been  inti- 
mated. 

"Thus  the  present  issue  is  not  whether  it  is  requisite  that  a 
sovereign  asking  the  recall  of  a  foreign  minister  should  give  the 
reasons  for  the  application,  but  whether,  when,  as  in  the  present 
case,  such  recall  has  been  asked  on  the  ground  of  interference  in 
the  politics  of  the  country  to  which  he  is  accredited,  the  question 
of  the  culpability  or  degree  of  such  interference  is  to  be  left  not 
to  the  decision  of  the  offended  sovereign,  but  to  the  determination 
of  the  sovereign  by  whom  the  offending  minister  was  accredited. 
It  is  not  understood  how  the  latter  view  can  be  held  by  Her 
Majesty's  Government  to  be  a  principle  of  the  law  of  nations, 


14  DIPLOMATIC  REPRESENTATIVES 

for  it  would  be  equivalent  to  saying  that,  by  such  law,  that 
government  is  entitled  to  determine  how  far  it  will  interfere  in 
the  politics  of  foreign  states,  and  what  degree  of  interference  by 
its  ministers  hi  the  internal  affairs  of  such  states  it  may  see 
proper  to  sustain.  It  would  be  far  better  to  suspend  diplo- 
matic relations  entirely  than  to  continue  them  on  the  basis  of 
such  a  right  of  interference  in  the  domestic  politics  of  other 
states  as  would  appear  to  be  assumed,  and  under  which,  if  ad- 
mitted, the  independence  and  dignity  of  the  injured  nation  would 
perish. 

"What  I  deem  to  be  the  true  international  rule  on  this  subject 
I  find  stated  under  the  high  authority  of  Calvo: 

"'When  the  government  near  which  a  diplomatic  agent 
resides  thinks  fit  to  dismiss  him  for  conduct  considered  im- 
proper, it  is  customary  to  rtotify  the  government  which 
accredited  him  that  its  representative  is  no  longer  accept- 
able, and  to  ask  for  his  recall.  If  the  offense  committed  by 
the  agent  is  of  a  grave  character,  he  may  be  dismissed  with- 
out waiting  the  recall  of  his  own  government.  The  govern- 
ment which  asks  for  the  recall  may  or  may  not,  at  its  pleas- 
ure, communicate  the  reasons  on  which  it  bases  its  request; 
but  such  an  explanation  cannot  be  required.  It  is  sufficient 
that  the  representative  is  no  longer  acceptable.  In  this 
case  international  courtesy  prescribes  his  immediate  recall; 
and  if,  notwithstanding,  the  other  government  does  not  com- 
ply with  the  request,  the  dismissal  of  the  agent  follows  as  a 
necessary  consequence,  it  is  effected  by  a  simple  notification 
and  the  sending  of  his  passport.  The  dismissal  of  a  diplomatic 
agent  for  improper  conduct,  either  hi  his  individual  capacity 
or  in  the  discharge  of  his  official  duties,  is  not  an  act  of  dis- 
courtesy or  hostility  toward  the  government  which  ac- 
credited him,  and,  consequently,  cannot  be  a  reason  for  de- 
claring war.'  (Int.  Law  [4th  ed.,  1888],  vol.  3,  p.  213.) 

"The  point  of  time  at  which  this  exclusive  discretion  is  to 
be  exercised  —  whether  before  the  departure  of  the  envoy  for 
his  post,  or  at  his  entrance  upon  his  duties,  or  at  any  period  dur- 


THE  LORD  SACKVILLE  WEST  INCIDENT  15 

ing  their  continuance  —  would  not  apparently  affect  the  claim  put 
forward  by  the  Marquis  of  Salisbury. 

"Under  the  rule  adopted  by  him  the  receiving  government 
must  take  whoever  may  be  sent;  and,  in  case  by  misbehavior 
the  envoy  should  render  himself  unacceptable,  its  rights  are  to 
be  restricted  to  a  submission  of  the  reasons,  which,  if  'grave  and 
weighty/  would  be  taken  into  serious  consideration  and  weighed 
by  Her  Majesty's  Government '  with  all  the  attention  they  might 
deserve.' 

"To  accept  such  a  proposition  as  a  rule  of  international 
intercourse  would  be  absolutely  inconsistent  with  national  inde- 
pendence. I  have,  therefore,  forborne  to  cite  from  Calvo  the 
numerous  cases  from  which  he  deduces  the  rule  laid  down  by 
him. 

"An  envoy  is  intended  to  be  a  confidential  intermediary  be- 
tween two  governments  professing  friendly  relations,  and  in  reli- 
ance upon  his  good  faith  the  best  assurance  of  continued  amity 
and  good  understanding  will  be  found. 

"It  cannot,  therefore,  be  justly  regarded  as  a  cause  of  inter- 
national offense  to  request  the  recall  of  an  envoy  whenever  it  is 
discovered  that  his  conduct  has  been  such  as  to  unsettle  the  con- 
fidence of  the  receiving  government;  nor  for  that  government  to 
dismiss  him  whenever  in  its  judgment  circumstances  have  arisen, 
owing  to  his  misconduct,  which  endanger  its  own  safety  and  wel- 
fare or  tend  to  jeopardize  the  good  relations  of  the  two  govern- 
ments. 

"I  renew  my  expressions  of  sincere  regret  that  what  Lord  Salis- 
bury has  correctly  termed  a  'personal  incident'  should  have  been 
thought  by  Her  Majesty's  Government  in  any  degree  to  qualify 
the  harmony  of  intercourse  between  two  nations,  for  whose 
amicable  relations  none  can  be  more  sincerely  desirous  than  the 
President  and  those  who,  together  with  him,  are  charged  with  the 
administration  of  the  affairs  of  the  Government  and  people  of  the 
United  States.1 

1  In  retaliation  the  British  Government  recalled  the  other  members  of  the  British 
Mission,  leaving  the  legation  and  archives  in  the  custody  of  a  clerk.  It  was  sug- 
gested that  he  might  properly  be  designated  as  a  chargt  des  a/aires,  to  distinguish 
the  case  of  a  chargt  d'affaires  ad  interim,  as,  for  example,  when  a  secretary  of  lega- 
tion is  left  temporarily  in  charge. 


l6  DIPLOMATIC  REPRESENTATIVES 

"You  are  authorized  to  communicate  a  copy  of  this  paper  to 
Her  Majesty's  Government. 

"I  am,  sir,  your  obedient  servant, 

"T.  F.  BAYARD." 

(Foreign  Relations  of  the  United  States,  1888,  part  n,  pp.  1667- 
1729,  especially  pp.  1667-69;  1672,  1706,  1710,  1720-24.) 


DUKE  OF  RIPPERDA'S  CASE   (1726) 

IN  1726  the  famous  Duke  of  Ripperda,  Minister  of  Finance 
and  Foreign  Affairs  to  Philip  V  of  Spain,  becoming  apprehensive 
as  to  his  security,  sought  asylum  in  the  house  of  the  British  Am- 
bassador at  Madrid.  It  appears  that  Ripperda  came  uninvited  to 
the  British  Embassy,  after  having  been  refused  asylum  at  the 
Dutch,  and  that  he  was  permitted  to  remain  at  the  former  only 
after  assuring  the  British  Ambassador  that  he  was  not  in  disgrace 
(he  had  been  dismissed  from  office  on  a  pension)  or  charged  with 
crime.  Subsequently  the  ambassador  had  an  audience  of  the 
King  and  was  assured  that  the  duke  might  remain  in  the  embassy, 
it  being  understood  that  he  was  not  to  be  permitted  to  escape 
and  that  some  soldiers  would  be  placed  about  the  embassy  as  a 
precaution  against  any  attempts  in  that  direction.  The  Spanish 
Government,  however,  subsequently  becoming  alarmed  at  the 
discovery  that  the  duke  had  taken  with  him  important  papers, 
submitted  to  the  Council  of  Castile  the  question  whether  he 
might  not  be  seized.  The  Council  of  Castile  answered  in  the 
affirmative,  holding  that  it  would  "operate  to  the  subversion  and 
utter  ruin  [of  sovereigns]  if  persons  who  had  been  entrusted  with 
the  finances,  the  power  and  the  secrets  of  the  state,  were,  when 
guilty  of  violating  the  duties  of  their  office,  allowed  to  take  shelter 
under  a  privilege  which  had  been  granted  to  the  houses  of  am- 
bassadors in  favor  of  only  ordinary  offenders." 

In  conformity  with  this  view,  the  Spanish  Government  sent 
officers  to  seize  the  duke.  This  was  done  without  previously  com- 
municating to  the  ambassador  the  resolution  of  the  Council  of 
Castile  and  demanding  Ripperda's  surrender.  The  ambassador 
submitted  to  avoid  disturbance.  The  relations  between  England 


SECRETARY  OF  THE  NUNCIATURE  AT  PARIS  17 

and  Spain  were  already  exceedingly  strained,  and  the  seizure  of 
Ripperda,  though  not  the  cause  of  the  subsequent  hostilities  be- 
tween the  two  countries,  was  resented  in  England.  The  burden, 
however,  of  the  British  Government's  complaint  was  the  summary 
and  forcible  termination,  without  notice,  of  the  asylum  to  which 
the  King  had  consented,  the  Duke  of  Newcastle,  then  Secretary 
of  State,  expressly  saying  that,  without  deciding  whether  the  am- 
bassador had  or  had  not  the  right  to  protect  Ripperda,  an  op- 
portunity should  under  the  circumstances  have  been  afforded  for 
his  surrender  before  resort  was  had  to  an  act  of  force. 

(Taken  textually  from  Moore:  Digest  of  International  Law, 
vol.  n,  pp.  765-66.) 


EXPULSION  OF  THE  SECRETARY  OF  THE  NUNCIA- 
TURE AT  PARIS   (1906) 

IN  the  year  1904  relations  were  broken  off  between  France  and 
the  Holy  See.  In  the  month  of  July  of  that  year  the  French 
Government  returned  his  passports  to  the  nuncio,  Mgr.  Loren- 
zelli,  and  recalled  the  French  Ambassador  from  the  Vatican. 
Subsequently  only  a  secretary  of  the  embassy  remained  at  Rome 
in  the  former  embassy  of  France  to  guard  its  archives.  Similarly 
an  auditor  of  the  nunciature,  Mgr.  Montagnini,  was  entrusted 
with  the  like  office  at  Paris  at  the  residence  in  the  Rue  de 
I'Elyse'e  formerly  inhabited  by  the  nuncio.  The  French  Govern- 
ment looked  upon  the  continued  presence  of  this  secretary  in 
Paris  as  dangerous  after  the  putting  into  effect  of  the  law  of  De- 
cember 9,  1905,  providing  for  the  separation  of  Church  and  State. 
In  obedience  to  the  Pope's  orders,  the  Catholic  clergy  of  France 
did  not  form  the  religious  organizations  provided  for  by  law. 
They  were  not  even  willing  to  consider  their  religious  gatherings 
as  public  meetings  and  to  give  the  notice  required  by  the  law  of 
June  30,  1881,  in  accordance  with  the  decision  of  M.  Briand, 
Minister  of  Education  and  Religious  Affairs,  in  his  circular  of 
December  i,  1906.  This  attitude  disturbed  the  French  Govern- 
ment. They  believed  that  the  Italian  prelate  was  an  intermediary 
between  the  Pope  and  members  of  the  clergy,  that  he  had  given 
them  instructions  to  resist  the  French  law,  and  that  his  expulsion 


18  CONSULS 

was  necessary.  Consequently,  on  December  n,  1906,  at  six  o'clock 
in  the  morning  the  chief  officer  of  the  police  entered  the  house 
situated  at  No.  10  Rue  de  1'Elysee  where,  since  the  nuncio's 
departure,  Mgr.  Montagnini  had  continued  to  reside.  The  prelate 
would  seem  to  have  been  placed  in  solitary  confinement;  at  any 
rate,  isolated  as  completely  as  possible  from  communication  with 
the  outside  world.  From  six  o'clock  in  the  morning  till  five  o'clock 
at  night  the  place  was  carefully  guarded,  even  personal  and  inti- 
mate friends  of  the  prelate  being  denied  admittance.  During 
this  time  search  was  made  among  the  prelate's  papers.  In  the 
evening,  after  a  rapid  sorting,  the  most  important  of  these  papers 
were  carried  to  the  record  office  of  the  Palace  of  Justice.  As  for 
Mgr.  Montagnini,  he  was  conducted  under  the  escort  of  special 
officers  to  the  railway  station  of  Lyon  and  thence  to  the  frontier 
without  being  able  to  communicate  with  any  one  until  his  depar- 
ture from  France. 

Such  were  the  facts.  They  resulted  in  a  protest  (December  21) 
on  the  part  of  the  Holy  See,  addressed  to  its  representatives  with 
various  foreign  governments.  The  opposition  in  France,  both  in 
the  press  and  in  the  Chamber  of  Deputies,  did  not  fail  to  point 
out  the  brutality  of  the  procedure. 

(Translation.  Revue  Generate  de  Droit  International  Public, 
[1907],  vol.  xrv,  pp.  176-77.) 


§2.   CONSULS 


CONSUL  PRIEST'S  CASE  (1855) 

IN  instructions  dated  May  n,  1855,  to  the  American  Minister 
to  Nicaragua,  Secretary  Marcy  said:  "The  right  of  the  Nicara- 
guan  Government  to  refuse  an  exequatur  to  Mr.  Priest  [who  had 
been  appointed  United  States  Consul  at  San  Juan  del  Sur]  can- 
not be  denied.  If,  as  is  intimated,  the  only  cause  assigned  for 
their  hesitation  was  the  publication  of  a  private  letter  of  that 
gentleman  which  was  deemed  objectionable,  he  may  regret  this 
as  a  misfortune,  but,  if  he  shall  not  ultimately  receive  the  exe- 


BARBUIT'S  CASE  19 

quatur,  we  could  not  consider  it  as  an  injury  of  which  it  would  be 
advisable  to  complain." 

(Moore:  Digest  of  International  Law,  vol.  v,  p.  28.) 


BARBUIT'S   CASE   (1737) 

BARBUIT  had  a  commission,  as  agent  of  commerce  from  the 
King  of  Prussia  in  Great  Britain,  in  the  year  1717,  which  was  ac- 
cepted here  by  the  Lords  Justices  when  the  King  was  abroad. 
After  the  late  King's  demise  his  commission  was  not  renewed 
until  1735,  and  then  it  was,  and  allowed  in  a  proper  manner;  but 
with  the  recital  of  the  powers  given  him  in  the  commission,  and 
allowing  him  as  such.  These  commissions  were  directed  generally 
to  all  the  persons  whom  the  same  should  concern  and  not  to  the 
King;  and  his  business  described  in  the  commissions  was,  to  do 
and  execute  what  His  Prussian  Majesty  should  think  fit  to  order 
with  regard  to  his  subjects  trading  in  Great  Britain;  to  present 
letters,  memorials  and  instruments  concerning  trade  to  such 
persons,  and  at  such  places,  as  should  be  convenient,  and  to  re- 
ceive resolutions  thereon;  and  thereby  His  Prussian  Majesty 
required  all  persons  to  receive  writings  from  his  hands,  and  give 
him  aid  and  assistance.  Barbuit  lived  here  near  twenty  years, 
and  exercised  the  trade  of  a  tallow-chandler,  and  claimed  the 
privilege  of  an  ambassador  or  foreign  minister,  to  be  free  from 
arrests.  After  hearing  counsel  on  this  point, 

Lord  Chancellor:  "A  bill  was  filed  in  this  court  against  the  de- 
fendant in  1725,  upon  which  he  exhibited  his  cross-bill,  styling 
himself  merchant.  On  the  hearing  of  these  causes  the  cross-bill 
was  dismissed;  and  in  the  other,  an  account  decreed  against  the 
defendant.  The  account  being  passed  before  the  master,  the 
defendant  took  exceptions  to  the  master's  report,  which  were  over- 
ruled; and  then  the  defendant  was  taken  upon  an  attachment  for 
non-payment,  etc.  And  now,  ten  years  after  the  commencement 
of  the  suit,  he  insists  he  is  a  public  minister,  and  therefore  all  the 
proceedings  against  him  null  and  void.  Though  this  is  a  very 
unfavorable  case,  yet  if  the  defendant  is  truly  a  public  minister, 
I  think  he  may  now  insist  upon  it;  for  the  privilege  of  a  public 


20  CONSULS 

minister  is  to  have  his  person  sacred  and  free  from  arrests,  not 
on  his  own  account,  but  on  the  account  of  those  he  represents, 
and  this  arises  from  the  necessity  of  the  thing,  that  nations  may 
have  intercourse  with  one  another  hi  the  same  manner  as  private 
persons,  by  agents,  when  they  cannot  meet  themselves.  And  if 
the  foundation  of  this  privilege  is  for  the  sake  of  the  prince  by 
whom  an  ambassador  is  sent,  and  for  sake  of  the  business  he 
is  to  do,  it  is  impossible  that  he  can  renounce  such  privilege  and 
protection:  for,  by  his  being  thrown  into  prison  the  business  must 
inevitably  suffer.  The  question  is,  whether  the  defendant  is  such 
a  person  as  7  Anne,  cap.  10,  [12],  describes,  which  is  only  declar- 
atory of  the  ancient  universal  j us  gentium;  the  words  of  the  statute 
are,  ambassadors  or  other  public  ministers,  and  the  exception  of 
persons  trading  relates  only  to  their  servants,  the  Parliament  never 
imagining  that  the  ministers  themselves  would  trade.  I  do  not 
think  the  words  ambassadors,  or  other  public  ministers,  are  synony- 
mous. I  think  that  the  word  ambassadors  in  the  act  of  Parliament, 
was  intended  to  signify  ministers  sent  upon  extraordinary  oc- 
casions, which  are  commonly  called  ambassadors  extraordinary; 
and  public  ministers  in  the  act  take  in  all  others  who  constantly 
reside  here;  and  both  are  entitled  to  these  privileges.  The  ques- 
tion is,  whether  the  defendant  is  within  the  latter  words.  It  has 
been  objected  that  he  is  not  a  public  minister,  because  he  brings 
no  credentials  to  the  King.  Now,  although  it  be  true  that  this  is 
the  most  common  form,  yet  it  would  be  carrying  it  too  far  to  say 
that  these  credentials  are  absolutely  necessary;  because  all  na- 
tions have  not  the  same  forms  of  appointment.  It  has  been  said, 
that  to  make  him  a  public  minister  he  must  be  employed  about 
state  affairs.  In  which  case,  if  state  affairs  are  used  in  opposition 
to  commerce,  it  is  wrong;  but  if  only  to  signify  the  business  be- 
tween nation  and  nation  the  proposition  is  right:  for,  trade  is  a 
matter  of  state,  and  of  a  public  nature,  and  consequently  a  proper 
subject  for  the  employment  of  an  ambassador.  In  treaties  of 
commerce  those  employed  are  as  much  public  ministers  as  any 
others;  and  the  reason  for  their  protection  holds  as  strong:  and 
it  is  of  no  weight  with  me  that  the  defendant  was  not  to  concern 
himself  about  other  matters  of  state,  if  he  was  authorized  as  a 
public  minister  to  transact  matters  of  trade.  It  is  not  neces- 


BARBUIT'S  CASE  21 

sary  that  a  minister's  commission  should  be  general  to  entitle 
him  to  protection;  but  it  is  enough  that  he  is  to  transact  any  one 
particular  thing  in  that  capacity,  as  every  ambassador  extraor- 
dinary is;  or  to  remove  some  particular  difficulties,  which  might 
otherwise  occasion  war.  But  what  creates  my  difficulty  is,  that  I 
do  not  think  he  is  intrusted  to  transact  affairs  between  the  two 
crowns:  the  commission  is,  to  assist  His  Prussian  Majesty's  sub- 
jects here  in  their  commerce;  and  so  is  the  allowance.  Now,  this 
gives  him  no  authority  to  intermeddle  with  the  affairs  of  the 
King:  which  makes  his  employment  to  be  in  the  nature  of  a  consul. 
And  although  he  is  called  only  an  agent  of  commerce,  I  do  not 
think  the  name  alters  the  case.  Indeed,  there  are  some  circum- 
stances that  put  him  below  a  consul;  for,  he  wants  the  power  of 
judicature,  which  is  commonly  given  to  consuls.  Also  their  com- 
mission is  usually  directed  to  the  prince  of  the  country;  which 
is  not  the  present  case:  but  at  most  he  is  only  a  consul. 

"It  is  the  opinion  of  Barbeyrac,  Wicquefort,  and  others,  that 
a  consul  is  not  entitled  to  the  jus  gentium  belonging  to  ambassa- 
dors. 

"And  as  there  is  no  authority  to  consider  the  defendant  in 
any  other  view  than  as  a  consul,  unless  I  can  be  satisfied  that  those 
acting  in  that  capacity  are  entitled  to  the  jus  gentium,  I  cannot 
discharge  him."  l 

Note:  The  person  was  after  discharged  by  the  Secretary's  Office, 
satisfying  the  creditors. 

(Taken  textually  with  the  reporter's  statement  from  Forrester: 

1  In  the  discussion  of  this  case  the  court  seems  to  have  determined,  that  a  per- 
son residing  in  this  country  in  the  capacity  of  foreign  minister,  cannot,  by  any  act 
or  acts  of  his  own,  waive  that  privilege  of  protection  which  the  law  of  nations  has 
annexed  to  a  situation  so  important.  That  a  foreign  minister,  being  or  becoming  a 
trader,  does  not  thereby  lose,  or  forfeit  the  privilege  personally  annexed  to  him;  and 
therefore,  the  only  reason  why  the  court  in  the  present  instance  did  not  think  the 
defendant  entitled  to  the  protection  which  he  claimed,  was,  that  the  employment 
which  he  was  invested  with,  could  at  most  be  considered  only  as  the  same  with,  or 
equal  to  that  of  consul,  which  according  to  the  best  writers  upon  the  subject,  was 
not  entitled  to  the  jus  gentium,  or  privilege  belonging  to  ambassadors  or  ministers 
who  are  entrusted  to  transact  matters  of  state  or  other  affairs  between  two  nations. 
That  the  law  of  nations  (which  in  its  fullest  extent  was  and  formed  part  of  the  law 
of  England)  was  the  rule  of  decision  in  cases  of  this  kind;  and  that  the  act  of  Par- 
liament was  declaratory  of  it,  and  occasioned  by  a  particular  incident.  [Note  of  the 
original  report.] 


22  CONSULS 


Cases  in  Equity  during  the  time  of  [the  late  Lord  Chancellor  Talbot 
[3d  ed.,  Dublin,  1793],  pp.  280-83.) 


CONSUL  WEILE'S  CLAIM 

THE  international  commission  organized  at  Lima,  Peru,  in 
conformity  with  the  Treaty  of  December  4,  1868,  between  the 
United  States  and  Peru,  settled,  on  the  principle  of  conciliation 
without  recourse  to  the  umpires,1  a  number  of  diplomatic  claims, 
amongst  which  was  that  of  Charles  Weile  for  wrongful  arrest  and 
imprisonment.  Weile,  while  United  States  Consul  at  Tumbes, 
interfered  to  aid  or  protect  a  Peruvian  woman  who  was  fighting 
with  her  husband,  and,  as  Peru  alleged,  dealt  the  husband  a 
nearly  fatal  blow  with  his  cane.  For  this  act  Weile  was  arrested 
and  imprisoned,  but  he  escaped  before  his  trial  was  finished,  and 
fled  the  country.  It  was  alleged  on  the  part  of  the  United  States 
that  the  wound  on  the  husband's  head  was  inflicted  by  the  wife; 
that  Weile's  arrest  was  illegal,  and  without  a  warrant,  and  that 
the  consular  office  was  broken  into  in  order  to  effect  it.  The 
Peruvian  Commissioner  was  opposed  to  awarding  a  large  sum, 
though  he  was  willing  to  allow  something.  The  United  States 
Commissioner  "insisted  on  the  importance  of  giving  a  decision 
which  would,  by  the  magnitude  of  the  award,  show  the  local 
authorities  how  wrong  it  is  for  them  to  act  in  a  hasty  manner 
when  the  liberty  and  honor  of  the  consul  of  a  friendly  power  are 
concerned." 

The  amount  demanded  was  $46,279.62  and  the  award  as  it  ap- 
peared in  the  report  of  Mr.  Vidal  was  $32,407.40. 

(Almost  a  textual  extract  from  Moore:  International  Arbitra- 
tions, vol.  n,  pp.  1639,  I64i,  1646,  1653.) 


THE   PRITCHARD  AFFAIR   (1844) 

ON  September  9,  1842,  the  Island  of  Tahiti,  at  the  request  of, 
and  under  the  conditions  specified  by,  its  Queen  Pomare,  became  a 

1  According  to  the  terms  of  the  treaty  it  was  provided  that  if  the  contracting 
parties  should  not  be  able  to  agree  on  the  name  of  an  umpire  they  should  each  name 


THE  PRITCHARD  AFFAIR  23 

French  protectorate.  (Correspondence  relative  to  Tahiti,  pp.  8-18, 
Parliamentary  Papers  [1843],  v°l-  LXI-)  "Vice-Admiral  Dupetit 
Thouars,  who  arrived  in  the  Bay  of  Papeete  on  the  ist  of  Novem- 
ber [1843]  to  carry  into  execution  the  Treaty  of  the  gth  of  Sep- 
tember, 1842,  which  the  King  had  ratified,  deemed  it  his  duty  not 
to  adhere  to  the  stipulations  of  that  treaty,  but  to  take  possession 
of  the  island."  (London  Times,  February  27,  1844,  2d  ed.,  and 
February  28,  1844,  quoting  the  Moniteur,  the  official  organ  of  the 
French  Government.)  Whereupon  Mr.  Pritchard,  the  English 
Consul  at  Tahiti,  "immediately1  hauled  down  his  flag,  and  gave 
an  official  intimation  or  notice  to  the  authorities  that  he  was  no 
longer  Her  Britannic  Majesty's  Consul  there  —  that  the  Queen 
having  been  dethroned,  he  had  no  longer  any  official  character."2 
(Statement  of  the  Earl  of  Aberdeen,  Secretary  for  Foreign 
Affairs,  in  the  House  of  Lords,  August  i,  1844;  Hansard:  Parlia- 
mentary Debates  [London,  1844,  3d  series],  vol.  LXXVI,  p.  1643.) 
Mr.  Pritchard,  whom  the  London  Times  (July  30,  1844)  desig- 
nates as  undoubtedly  "an  indiscreet,  hot-headed  man,"  and  who 
certainly  in  February  or  March  of  the  same  year  interfered  more 
actively  in  the  fortunes  of  Queen  Pomare  than  was  considered 
proper  by  the  British  Foreign  Office,3  "constantly  endeavored," 
according  to  a  statement  of  the  French  Minister  for  Foreign 
Affairs  on  August  29,  1844,  from  "the  month  of  February,  1843, 
up  to  the  month  of  March,  1844,  .  .  .  by  all  sorts  of  acts  and  prac- 

a  person  of  a  third  nation,  and  that  in  each  and  every  case  in  which  they  might  differ 
in  opinion  as  to  the  decision  which  they  ought  to  give,  it  should  be  determined  by  lot 
which  of  the  two  persons  so  named  should  be  umpire  in  that  particular  case. 

1  The  Journal  des  Dibats  says  that  this  measure  was  taken  in  the  month  of  De- 
cember. (London  Times,  August  6,  1844.) 

*  However  extraordinary  and  unjustifiable  it  may  have  been,  Mr.  Pritchard's 
conduct  in  hauling  down  his  consular  flag  and  notifying  the  authorities  that  he  was 
no  longer  consul  was  patently  intended  to  be  an  emphatic  protest  —  official  in  so 
far  as  he  was  able  to  make  it  —  against  the  French  action.  Hence  it  was  all  the  more 
incumbent  upon  the  French  authorities  in  this  delicate  situation  to  observe  toward 
him  the  full  measure  of  respect  due  to  the  consular  representative  of  a  friendly 
power.  They  must  have  known  that  an  official  is  unable  to  divest  himself  of  a  public 
charge  at  will.  In  plain  language,  Pritchard's  action  amounted  only  to  a  declara- 
tion that  the  French  action  made  it  impossible  for  him  to  continue  to  fulfill  his  office. 
In  the  presence  of  a  conciliatory  disposition  on  the  part  of  the  two  governments 
concerned,  Pritchard's  action  was  seized  upon  to  minimize  instead  of  aggravate  the 
extent  of  the  outrage. 

»  See  Correspondence  relative  to  the  Society  Islands,  pp.  i,  3,  8,  9,  Parliamentary 
Papers  [1844],  vol.  LI. 


24  CONSULS 

tices  to  impede,  disturb,  and  destroy  the  establishment  of  the 
French  at  Tahiti,  the  administration  of  justice,  the  exercise  of 
authority  by  the  French  agents,  and  their  relations  with  the  na- 
tives." l  (Correspondence  relating  to  the  Removal  of  Mr.  Pritchard, 
Parliamentary  Papers  [1845],  v°l-  Ln-) 

On  March  2,  Papeete,  the  capital  of  Tahiti,  was  declared  by 
D'Aubigny,  a  French  officer  temporarily  in  charge,  to  be  "in  a 
state  of  siege,"  and  that  night  a  French  sentinel  was  attacked. 
(London  Times,  July  30,  1844.)  The  subsequent  action  taken  by 
D'Aubigny  is  told  in  his  own  declaration  of  March  3,  which, 
according  to  the  account  of  a  British  officer  at  Tahiti  (London 
Times,  July  30,  1844),  was  "placarded  in  French,  English,  and 
Tahitian  on  the  different  public  places:" 

"A  French  sentinel  was  attacked  in  the  night  of  the  2d  to  the 
3d  of  March. 

"In  reprisal,  I  have  caused  to  be  seized  one  Pritchard,  the  only 
daily  mover  and  instigator  of  the  disturbance  of  the  natives. 
His  property  shall  be  answerable  for  all  damage  occasioned  to  our 
establishments  by  the  insurgents;  and  if  French  blood  is  spilt, 
every  drop  shall  recoil  on  his  head. 

"D'AUBIGNY, 

"Commandant  Particular  to  the  Society  Islands. 
"PAPEETE,  March  3." 

(London  Times,  July  30,  1844.) 

On  the  return  of  the  French  Governor  to  Papeete,  as  M. 
Guizot,  French  Minister  for  Foreign  Affairs,  afterwards  informed 
the  British  representative  at  Paris,  August  29,  1844,  haste  was 
made  "to  put  an  end  to  these  vexatious  proceedings  by  ordering 
the  embarkation  and  departure  of  Mr.  Pritchard."  (Correspond- 
ence relating  to  the  Removal  of  Mr.  Pritchard  from  Tahiti,  p.  5, 
Parliamentary  Papers  [1845],  v°l-  LnO 

When,  the  last  of  July,  the  news  of  Mr.  Pritchard's  seizure 
reached  England  and  France,  a  very  tense  situation  immediately 

1  The  Earl  of  Aberdeen,  British  Secretary  for  Foreign  Affairs,  in  a  letter  of  Sep- 
tember 6,  1844,  to  the  English  Minister  at  Paris,  wrote:  "With  respect  to  Mr.  Prit- 
chard, k  is  due  to  that  gentleman  to  declare,  that  he  has  uniformly  denied  the  truth 
of  the  allegations  which  have  been  brought  against  him,  and  has  courted  the  strictest 
inquiry."  No  inquiry,  however,  was  made  at  that  time.  (Correspondence  relating  to 
the  Removal  of  Mr.  Pritchard  from  Tahiti,  Parliamentary  Papers  [1845],  vol.  LII.) 


THE  PRITCHARD  AFFAIR  25 

developed  between  the  two  countries.  The  indignation  of  England 
was  met  by  an  answering  indignation  hi  France  that  England 
should  be  so  stirred,  and  a  letter  from  the  French  correspondent 
of  the  London  Times  (printed  August  6,  1844)  declared:  "It  will 
be  almost  a  miracle  if  the  present  ministry  maintain  itself  and 
terminate  this  matter  pacifically;  and  yet  I  am  not  without  hope 
that  they  will  be  able  to  do  both,  although  it  is  very  easy  to  fore- 
see the  storm  they  will  raise  by  acquiescing  in  any  terms  your 
government  may  propose." 

A  discussion  of  the  matter  immediately  ensued  between  the 
British  and  French  Governments,  with  the  result  that  on  August 
29,  1844,  M.  Guizot,  French  Minister  for  Foreign  Affairs,  made 
to  the  English  Government  the  following  statement:  That  "the 
French  authorities  had  legitimate  grounds,  and  were  in  fact  com- 
pelled to  exercise  their  right  to  remove  Mr.  Pritchard  from  the 
territory  of  the  island,  where  his  presence  and  conduct  fomented 
amongst  the  natives  a  constant  resistance  and  sedition;"  that 
this  right  belonged  to  the  Government  of  the  King  "not  only  in 
virtue  of  the  right  common  to  all  nations,  but  also  according  to 
the  actual  terms  of  the  Treaty  of  the  Qth  of  September,  1842, 
which  established  the  French  protectorate."1  M.  Guizot  added, 
however:  "With  regard  to  certain  circumstances  which  preceded 
the  removal  of  Mr.  Pritchard,  especially  the  manner  and  the 
place  of  his  temporary  imprisonment,  and  the  proclamation 
published  with  respect  to  him,  at  Papeete,  on  the  3d  of  March 

1  The  Earl  of  Aberdeen,  Secretary  of  State  for  Foreign  Affairs,  in  his  speech  in 
the  House  of  Lords  on  August  i,  1844,  pointed  out,  however,  that  the  act  in  ques- 
tion took  place  not  during  the  French  protectorate,  but  during  the  temporary  and 
ill-advised  possession  of  the  island  on  the  part  of  the  French  officers  in  command. 
The  Earl  of  Aberdeen  said:  "It  is  undoubtedly  true  that  a  gross  outrage  has  been 
committed  against  the  person  of  a  British  subject.  .  .  .  But  I  wish  to  observe  to 
the  House  that  this  proceeding  has  taken  place,  not  only  without  the  possible  knowl- 
edge, or  instruction,  or  participation  of  the  French  Government,  but  under  a  state 
of  things  which  has  been  disavowed  by  them.  It  will  be  recollected  that,  in  the 
month  of  September  [sic]  last,  the  French  authorities  in  the  Island  of  Tahiti  de- 
throned the  Queen,  and  took  absolute  possession  of,  and  exercised  the  full  rights  of 
sovereignty  over  that  island.  .  .  .  The  proceeding  was  promptly  disavowed  by 
the  French  Government  just  about  the  time  that  the  present  transaction  took  place, 
in  the  month  of  March  last.  But  during  the  intervening  months,  it  is  clear  that  a 
state  of  things  existed  that  would  account  for  certain  acts  which  it  would  be  im- 
possible to  anticipate  under  another  and  a  more  satisfactory  state  of  things."  (Han- 
sard: Parliamentary  Debates  [London,  1844],  3d  series,  vol.  uocvi,  p.  1643.) 


26  CONSULS 

last,  the  Government  of  the  King  regret  them  sincerely,  and  the 
necessity  of  such  proceedings  does  not  appear  justified  by  the 
facts."  (Correspondence  relating  to  the  Removal  of  Mr.  Pritchard 
from  Tahiti,  Parliamentary  Papers  [1845],  v°l-  UI-)  A  subsequent 
note  of  September  2  from  M.  Guizot  to  the  French  Minister  at 
London  added  that,  "in  expressing  to  Her  Britannic  Majesty's 
Government  then-  regret  at,  and  disapproval  of,  certain  circum- 
stances which  preceded  the  removal  of  Mr.  Pritchard  from  the 
Island  of  Tahiti,  the  Government  of  the  King  are  disposed  to 
accord  an  equitable  indemnity  *  to  Mr.  Pritchard  in  proportion 
to  the  losses  and  sufferings  which  those  circumstances  may  have 
occasioned  to  him."  (Correspondence  relating  to  the  Removal  of 
Mr.  Pritchard  from  Tahiti,  Parliamentary  Papers  [1845],  v°l-  Ln-) 

These  overtures  were  accepted  as  entirely  satisfactory  by  the 
British  Government  and  were  so  announced  in  both  Houses  of 
Parliament  on  September  5,  1844.  (Correspondence  relating  to  the 
Removal  of  Mr.  Pritchard  from  Tahiti,  Parliamentary  Papers  [1845], 
vol.  LH.) 

(Correspondence  relative  to  Tahiti,  in  Parliamentary  Papers 
[1843],  v°l-  LXI>  Correspondence  relative  to  the  Society  Islands,  in 
Parliamentary  Papers  [1844],  vol.  LI;  Correspondence  relating  to 
the  Removal  of  Mr.  Pritchard  from  Tahiti,  in  Parliamentary  Papers 
[1845],  v°l'  Ln>  Hansard:  Parliamentary  Debates  [London,  1844], 
3d  series,  vol.  LXXVI;  London  Times,  1844;  The  Annual  Register, 
1844-) 


THE  CASE  OF  LEE  JORTIN   (1900) 

THE  civil  court  of  Dieppe  on  January  22,  1900,  gave  the  fol- 
lowing decision  in  this  case: 

"Whereas  action  is  brought  against  Lee  Jortin,  English  Vice- 
Consul  at  Dieppe,  in  the  police  court  at  Dieppe  on  the  complaint 
of  Murphy,  an  English  subject,  for  public  slander  and  injury  under 
articles  23,  29,  32,  33  of  the  law  of  July  29,  1881; 

"Whereas  Murphy  alleges  in  his  summons  that  on  October 
17,  1899,  at  11:30  A.M.  in  the  offices  of  the  consulate  at  Dieppe, 

1  The  indemnity  agreed  upon  amounted  to  25,000  francs.  (Charles  Calvo:  Lt 
Droit  International  [Paris,  1896],  vol.  in,  p.  233.) 


THE  CASE  OF  LEE  JORTIN  27 

Lee  Jortin  insulted  and  slandered  him  in  public  in  the  presence 
of  three  newspaper  men,  saying  to  him  in  English:  'You  are  a 
drunkard,  you  know  you  are  a  drunkard;' 

"Whereas,  by  way  of  reparation  for  the  prejudice  done  his  good 
name,  Murphy  sues  Lee  Jortin  for  the  sum  of  ten  thousand  francs 
and  asks  furthermore  that  the  judgment  to  be  rendered  in  his 
favor  be  inserted  in  various  newspapers; 

"Whereas  the  attorney  for  the  government  considers  that  the 
court  is  not  competent  in  the  case;  whereas  Lee  Jortin  has  adopted 
this  objection  of  the  incompetence  of  the  court  and  claims,  more- 
over, that  he  did  not  make  the  remarks  specified  in  the  sum- 
mons; 

"Whereas  it  appears  from  the  investigation  that  on  October 
17  last,  Messrs.  Wilby,  Strong  and  Cauway,  English  journalists, 
accompanied  by  Murphy,  went  to  the  English  Vice-Consulate 
to  make  inquiries  of  Lee  Jortin  in  regard  to  the  circumstances  of 
Murphy's  arrest  in  the  month  of  July  preceding; 

"Whereas  Lee  Jortin  in  this  interview  made  it  clear  that,  be- 
cause of  the  possibility  of  his  being  directed  to  make  an  official 
investigation,  it  was  proper  that  he  should  act  with  great  reserve; 
nevertheless,  on  being  reproached  because  he  had  not  lent  his 
assistance  to  Murphy,  Lee  Jortin,  turning  toward  him,  is  alleged 
to  have  said:  'You  were  drunk  that  day;  you  know  well  enough 
you  are  a  drunkard;  we  all  have  our  moments  of  weakness;  you 
have  been  seen  repeatedly  in  Dieppe  in  a  drunken  condition' 
(testimony  of  Wilby  and  Strong) ; 

"Whereas  Mr.  Walis,  secretary  of  the  consulate,  affirms  on  the 
contrary  that  Lee  Jortin  did  not  make  use  of  the  expressions  at- 
tributed to  him  by  the  witnesses,  that  he  may  perhaps  have  re- 
marked to  Murphy  that  he  had  the  reputation  of  not  behaving 
himself  well  at  the  club  and  of  drinking  too  much,  and  he  may 
have  added  in  answer  to  Murphy's  protest:  'Pardon  me,  but 
you  surely  know  you  are  in  the  habit  now  and  then  of  taking  too 
much;' 

"Whereas  the  alleged  remarks  in  regard  to  which  the  witnesses 
are  thus  seen  to  disagree  were  made  at  the  English  Vice-Consul- 
ate in  the  office  of  the  vice-consul; 

"Whereas  Lee  Jortin  was  questioned  as  vice-consul  in  regard  to 


28  CONSULS 

the  reasons  which  had  deterred  him  from  giving  assistance  to 
one  of  his  countrymen  in  difficulty  with  the  French  authorities; 

"Whereas  he  was  then  fulfilling  his  office  in  stating  the  reasons 
which  deterred  him  from  intervening  or  which  limited  his  inter- 
vention; 

"Whereas  consuls  and  vice-consuls  do  not  in  the  absence  of 
special  treaty  stipulations  enjoy  the  privileges  accorded  diplo- 
matic agents,  more  particularly  the  privilege  of  extraterritoriality 
and  immunity  from  jurisdiction; 

"Whereas  they  reside  hi  France  like  any  other  foreigners  sub- 
ject to  the  police  regulations  for  the  public  welfare,  and  therefore 
come  under  the  jurisdiction  of  the  French  courts; 

"Whereas,  nevertheless,  though  this  be  granted,  the  action  of 
consuls  in  their  private  capacity  is  not  the  same  thing  as  then- 
action  in  the  capacity  of  consuls; 

"Whereas  even  though  it  be  true  that  consuls  and  vice-consuls 
are  not  diplomatic  agents,  they  ought  nevertheless  to  be  consid- 
ered as  public  officials  of  a  foreign  sovereign,  who  are  entrusted 
by  that  sovereign  with  the  duty  of  defending  the  interests  of  their 
countrymen  before  the  local  authorities,  and  who  are  invested  so 
far  as  concerns  these  countrymen  with  a  real  authority  (magis- 
trature),  in  the  free  exercise  of  which  they  are  insured  by  their 
letters  of  exequatur; 

"Whereas,  consequently  and  by  virtue  of  their  office,  however 
it  may  differ  from  that  of  diplomatic  ministers,  they  ought  to 
enjoy  a  certain  personal  immunity  so  long  as  they  keep  within 
the  limits  of  their  official  duties  and  the  public  welfare  is  not 
jeopardized; 

"Whereas  there  is  no  question  here  of  exemption  from  jurisdic- 
tion, but  of  an  inherent  immunity  which  arises  from  the  very 
institution  of  consulates  and  which  is  governed  by  the  laws  of 
international  courtesy; 

"Whereas,  in  fact,  it  would  be  impossible  for  consuls  to  have 
the  necessary  freedom  of  action  for  the  discharge  of  their  duties 
if  they  could  be  subject  to  prosecution  by  their  own  countrymen 
before  French  courts  for  acts  they  had  done  or  even  merely  for 
remarks  which  they  had  made  in  their  official  capacity; 

"Whereas  it  was  strictly  hi  his  official  capacity  as  vice-consul 


THE    CASE   OF  LEE  JORTIN  29 

that  Lee  Jortin  imparted  to  Murphy  and  the  persons  accompany- 
ing him  the  motives  which  led  him  to  refuse  his  assistance; 

"Whereas  it  is  not  the  duty  of  the  court  to  judge  or  examine  the 
reasonableness  of  these  motives  or  the  more  or  less  emphatic 
form  in  which  he  expressed  himself; 

"Whereas,  in  the  case  at  issue,  Lee  Jortin  can  be  held  account- 
able for  his  acts  and  expressions  to  his  own  government  only; 

"Whereas  it  follows  that  it  is  not  necessary  to  inquire  into 
whether  the  remarks  complained  of  are  sufficiently  proved  or 
whether  they  contain  elements  which  constitute  the  offenses  of 
slander  and  injury  either  under  the  head  of  the  materiality  of 
the  facts  or  of  the  publicity  given  them  or  of  the  intention; 

"Whereas  in  consequence  the  court  must  declare  itself  simply 
and  unconditionally  without  competence; 

"On  these  grounds  the  court  declares  itself  without  compe- 
tence and  condemns  Murphy,  plaintiff  in  the  suit,  to  pay  the 
costs." 

(Translation.  Journal  de  Droit  International  Prive  [1900],  vol. 
xxvn,  pp.  130-32.) 

•  On  appeal  to  the  Court  of  Appeals  of  Rouen  the  decision  of  the 
court  of  Dieppe  was  affirmed,  May  n,  1900,  and  Murphy  was 
also  condemned  in  costs  for  the  appeal. 

At  the  same  time  the  Court  of  Appeals  considered  the  appeal 
from  another  judgment  of  March  19, 1900,  brought  against  Consul 
Jortin  in  the  court  of  Dieppe  by  Murphy  because  of  the  alleged 
injury  caused  him  by  statements  in  a  letter  published  in  the 
Times  and  afterwards  translated  in  a  local  newspaper  of  Dieppe.  ' 
The  court  of  Dieppe  considered  that  Consul  Jortin  in  writing  the 
letter  to  the  Times  had  not  acted  in  his  official  capacity  as  a  consul 
and  consequently  the  court  declared  itself  competent  to  consider 
the  action,  but  in  its  judgment  on  the  merits  of  the  case  the  court 
found  that  Consul  Jortin  had  acted  without  malice  and  in  a 
manner  reasonable  under  the  circumstances.  The  case  was  dis- 
missed and  Murphy  was  condemned  to  pay  the  costs. 

On  Murphy's  appeal  from  this  decision  the  court  of  Rouen 
intimated  that  in  its  opinion  Consul  Jortin's  act  in  writing  to  the 
Times  did  relate  to  his  official  position  as  consul  and  was  under- 


30  CONSULS 

taken  for  the  purpose  of  protecting  the  interests  entrusted  to 
his  care.  Furthermore,  the  court  was  of  opinion  that  even  if  the 
view  of  the  court  of  Dieppe  should  be  accepted  the  decision  was 
nevertheless  correct  in  dismissing  the  action  against  Consul  Jortin 
and  Murphy  was  again  condemned  to  pay  the  costs  of  this  appeal. 
(Condensed  from  the  Journal  de  Droit  International  Prive 
[1900],  vol.  xxvn,  pp.  958-64.) 


CONSUL  ROGERS'S   CASE   (1866) 

MR.  SEWARD,  in  an  instruction  to  Mr.  Kilpatrick,  Chile,  dated 
February  19,  1866,  informed  him  of  the  revocation  on  the  i2th 
inst.  of  the  exequatur  granted  to  Don  Estaban  Rogers  on  October 
14,  1863,  as  Chilean  Consul  ad  interim  at  New  York.  Mr.  Kil- 
patrick was  instructed,  hi  communicating  the  fact  to  the  Chilean 
Minister  for  Foreign  Affairs,  "to  say  that  this  measure  was 
adopted  for  causes  satisfactory  to  this  government,  and  hi  defense 
of  the  dignity  and  honor  of  the  United  States,"  and  to  "add,  at 
the  same  tune,  that  should  the  Chilean  Government  see  fit  to 
appoint  a  successor  to  Mr.  Rogers,  if  entirely  unobjectionable, 
the  usual  exequatur  will  be  granted  to  him." 

On  February  15  Mr.  Asta  Buruaga,  the  Chilean  Minister  at 
Washington,  who  had  seen  a  notice  of  the  revocation  of  the  exe- 
quatur in  the  press,  complained  that  he  had  not  been  advised 
either  of  the  action  taken  or  of  the  reasons  for  it,  and  intimated 
that  it  was  inspired  by  false  representations  of  Spanish  agents  as 
to  the  consul's  violation  of  the  neutrality  laws. 

Mr.  Seward  replied,  February  16,  that  the  action  was  taken 
"for  causes  satisfactory  to  this  government,  and  in  defense  of 
the  dignity  and  honor  of  the  United  States,"  and  that  General 
Kilpatrick  had  been  instructed  to  say  to  the  Chilean  Government 
"that  a  new  consul,  if  entirely  unobjectionable,  will  be  received 
by  this  government." 

Mr.  Asta  Buruaga  subsequently  left  at  the  Department  of 
State,  April  26,  1866,  a  communication  on  the  subject,  dated  the 
2d  of  that  month,  from  the  Chilean  Minister  of  Foreign  Affairs. 
In  this  communication  Mr.  Covarrubias  said  that  Mr.  Seward 's 


DILLON'S  CASE  31 

"laconic  explanation,"  which  was  called  forth  by  the  minister's 
"timely  and  just  observations,"  did  not  disclose  the  reason  for 
the  revocation  of  the  exequatur.  When,  in  1859,  Chile  "was  com- 
pelled, for  good  and  powerful  reasons,  to  cancel  the  exequatur  of 
Mr.  Trevitt,  Consul  of  the  United  States  at  Valparaiso,"  she  ad- 
dressed without  delay  to  the  United  States  Minister  explanations 
which  were  "spontaneous,  clear,  circumstantial,  full,  and  satis- 
factory." She  therefore  looked  with  "double  surprise  and  regret" 
upon  the  present  case,  hi  which  she  had  "a  right  to  expect  at  least 
that  the  international  principle  of  reciprocity  would  have  been 
consulted." 

Mr.  Seward,  May  29,  replied,  in  a  note  to  Mr.  Asta  Buruaga, 
that  the  President  was  not  convinced  that  an  error  had  been  com- 
mitted in  the  withdrawal  of  the  exequatur  or  in  the  manner  in 
which  it  was  done.  The  consul's  exequatur  was  summarily  revoked 
"under  full  .conviction  on  the  part  of  this  government  that  the 
complaints  of  his  violation  of  the  neutrality  laws  were  sustained 
by  presumptive  proof,  and  that  to  allow  him  to  continue  to  exer- 
cise consular  functions  while  pursuing  such  unlawful  practices 
would  involve  a  necessity  for  explanations  between  the  Govern- 
ment of  Chile  and  that  of  the  United  States,  which  could  in  no 
case  improve  the  friendship  existing  between  them,  and  might, 
perhaps,  result  in  producing  a  rupture  of  relations  which  would 
be  prejudicial  to  both,  and  to  the  cause  of  all  the  American 
republics."  It  was,  however,  "an  occasion  of  much  regret"  that 
a  commercial  agent  of  Chile  "should  have  proved  himself  un- 
worthy of  the  confidence  reposed  in  him  by  the  friendly  Govern- 
ment of  the  United  States." 

(Taken  textually  from  Moore:  Digest  of  International  Law, 
vol.  v,  pp.  22-23.) 

DILLON'S  CASE  (1854) 

IN  1854  Mr.  Dillon,  then  Consul  of  France  at  San  Francisco, 
was  brought  into  the  United  States  District  Court,  then  sitting, 
on  an  attachment  for  refusing  to  obey  a  subpoena  duccs  tecum 
issued  from  that  court  to  compel  his  attendance  at  a  criminal 
trial  then  and  there  pending.  Mr.  Dillon  protested  against  the 


32  CONSULS 

process  on  two  grounds:  (i)  immunity  from  such  process  by  in- 
ternational law;  (2)  immunity  under  the  French-American  treaty. 
The  second  point  was  merged  in  argument  in  the  first,  since  it 
was  agreed  by  counsel  that  the  treaty  privilege  could  not  stand 
in  the  way  of  a  party's  constitutional  right  to  meet  the  witness 
against  him  face  to  face,  unless  that  privilege  was  in  accordance 
with  public  international  law. 

When  the  attachment  was  served  on  Mr.  Dillon,  he  hauled 
down  his  consular  flag;  and  the  case  was  taken  up  by  the  French 
Minister  at  Washington,  as  involving  a  gross  disrespect  to 
France.  A  long  and  animated  controversy  between  Mr.  Marcy, 
then  Secretary  of  State,  and  the  French  Government  ensued. 
The  fact  that  an  attachment  had  issued  under  which  Mr.  Dillon 
was  brought  into  court  was  regarded  by  the  French  Government 
as  not  merely  a  contravention  of  the  treaty,  but  an  offense  by 
international  law;  and  it  was  argued  that  the  disrespect  was  not 
purged  by  the  subsequent  discharge  of  Mr.  Dillon  from  arrest. 
It  was  urged,  also,  that  the  fact  that  the  subpoena  contained  the 
clause  duces  tecum  involved  a  violation  of  the  consular  archives. 
Mr.  Marcy,  in  a  letter  of  September  n,  1854,  to  Mr.  Mason, 
then  minister  at  Paris,  discusses  these  questions  at  great  length. 
He  maintains  that  the  provision  in  the  Federal  Constitution 
giving  defendants  opportunity  to  meet  witnesses  produced  against 
them  face  to  face,  overrides  conflicting  treaties,  unless  in  cases 
where  such  treaties  embody  exceptions  to  this  right  recognized 
as  such  when  the  Constitution  was  framed.  One  of  these  excep- 
tions relates  to  the  case  of  diplomatic  representatives.  "As  the 
law  of  evidence  stood  when  the  Constitution  went  into  effect," 
says  Mr.  Marcy,  "ambassadors  and  ministers  could  not  be  served 
with  compulsory  process  to  appear  as  witnesses,  and  the  clause  in 
the  Constitution  referred  to  did  not  give  the  defendant  the  right 
in  criminal  prosecutions  to  compel  their  attendance  in  court." 
This  privilege,  however,  Mr.  Marcy  maintained,  did  not  extend  to 
consuls,  and  consuls,  therefore,  could  only  procure  the  privilege 
when  given  to  them  by  treaty  which,  in  criminal  cases,  was  sub- 
ject to  the  limitations  of  the  Constitution  of  the  United  States. 
Mr.  Marcy,  however,  finding  that  the  French  Government 
continued  to  regard  the  attachment,  with  the  subpoena  duces 


DILLON'S  CASE  33 

tecum,  as  an  attack  on  its  honor,  offered,  in  a  letter  to  Mr.  Mason, 
dated  January  18,  1855, to  compromise  the  matter  by  a  salute  to 
the  French  flag  upon  a  French  man-of-war,  stopping  at  San 
Francisco.1  Count  de  Sartiges,  the  French  Minister  at  Wash- 
ington, asked  in  addition  that  when  the  consular  flag  at  San 
Francisco  was  rehoisted,  it  should  receive  a  salute.  This  was  de- 
clined by  Mr.  Marcy.  In  August,  1855,  after  a  long  and  pro- 
tracted controversy,  the  French  Government  agreed  to  accept 
as  a  sufficient  satisfaction  an  expression  of  regret  by  the  Govern- 
ment of  the  United  States,  coupled  with  the  provision  that 
"when  a  French  national  ship  or  squadron  shall  appear  in  the 
harbor  of  San  Francisco  the  United  States  authorities  there, 
military  or  naval,  will  salute  the  national  flag  borne  by  such 
ship  or  squadron  with  a  national  salute,  at  an  hour  to  be  specified 
and  agreed  on  with  the  French  naval  commanding  officer  present, 
and  the  French  ship  or  squadron  whose  flag  is  thus  saluted  will 
return  the  salute  gun  for  gun." 

1  Whatever  the  correctness,  from  a  constitutional  point  of  view,  of  the  opinions 
expressed  by  Marcy,  by  his  action  in  agreeing  to  a  salute  of  the  French  flag,  he  ad- 
mitted the  validity  of  the  French  contention.  Although  unwilling  to  denounce  the 
valuable  treaty  with  France,  the  United  States  was  careful  not  to  enter  into  any 
new  treaties  which  contained  any  provision  exempting  consuls  from  giving  testimony. 
Provided  the  local  authorities  refrain  from  serving  subpcenas  or  attachments  and 
appeal  to  the  Federal  Government,  the  latter  should  not  have  much  difficulty  in 
prevailing  upon  the  consul  to  give  his  testimony.  In  a  note  of  March  27,  1855,  to 
the  Portuguese  Charg6  d' Affaires  (see  Moore:  Digest  of  International  Law,  vol.  v,  pp. 
Bo-8i),  Secretary  Marcy,  referring  to  the  above-mentioned  Article  II  of  the  consular 
convention  between  the  United  States  and  France  of  February  23,  1853,  made  the 
following  statement:  "It  is  the  duty  of  a  consul,  when  invited  to  appear  in  court  to 
give  his  testimony,  to  comply  with  the  request  unless  he  is  unable  to  do  so.  This  duty 
he  violates,  if  he  refuses  without  good  and  substantial  excuse.  Neither  his  official 
character,  his  disinclination,  nor  any  slight  personal  inconvenience  constitutes  such 
an  excuse.  The  pressure  and  importance  of  official  duties  requiring  immediate  per- 
formance may  prevent  his  attendance  in  court,  but  such  can  very  rarely  be  the  case 
where  the  court  sits  at  the  place  of  his  residence.  It  is  not  claimed  that  the  court 
can  entertain  the  question  of  the  competency  of  his  excuse  for  declining  to  comply 
with  its  invitation;  but,  where  the  Government  of  the  United  States  has  fair  grounds 
to  question  the  good  faith  with  which  the  consul  avails  Himself  of  the  provision  of 
the  convention  which  exempts  him  from  compulsory  process,  it  has  two  modes  of 
redress  and  it  can  take  either  at  its  option.  It  can  appeal  to  the  consul's  government 
to  inquire  into  the  case  in  this  respect,  and  to  deal  with  him  as  it  shall  find  his  con- 
duct deserves;  or  it  can  revoke  his  exequatur." 

The  constitutional  aspects  of  Dillon's  case  and  the  discussion  regarding  the  limits 
of  the  treaty-making  power  are  not  considered  here,  since  they  are  properly  classed 
as  questions  of  the  national  or  municipal  law  of  the  United  States. 


34  CONSULS 

(Extracted  and  condensed  from  Wharton:  Digest  of  the  Inter- 
national Law  of  the  United  States  [Washington,  1886],  vol.  I,  pp. 
665-67.) 


THE    INCIDENT   OF   THE    FRENCH    CONSULATE   AT 
FLORENCE   (1887-88) 

ON  June  28,  1887,  there  died,  at  Florence,  Hussein  Pacha,  an 
agent  of  long  standing  for  the  Bey  of  Tunis  whose  subject  he  was. 
The  French  Consul,  M.  de  Laigue,  advised  the  local  authority 
of  the  death  and,  without  encountering  any  opposition,  affixed 
seals  to  the  effects  of  which  Hussein  Pacha  died  possessed.  The 
local  authorities  were  informed  of  this  fact,  as  appears  from  letters 
addressed  under  date  of  June  30  to  the  French  Consul  by  the 
pretors  of  the  first  and  second  district  at  Florence,  who  excused 
themselves  for  not  being  able,  by  reason  of  the  duties  of  their 
office,  to  be  present  at  the  affixing  of  the  seals. 

The  effects  and  papers  of  the  deceased  were  placed  in  the  ar- 
chives of  the  consulate.  The  French  Consul  believed  that  in  so 
doing  he  was  acting  conformably  to  the  Franco-Italian  Consular 
Convention  of  1862. 

Several  months  passed.  On  October  29  and  on  November  2, 
1887,  the  French  Consul,  at  the  request  of  M.  Santillana,  acting 
for  the  Bey  of  Tunis  who  had  claim  on  the  property,  proceeded 
to  break  the  seals,  which  had  not  been  crossed  with  those  of  the 
local  authorities.  Then  one  M.  El-melik  came  forward.  He  pre- 
tended to  be  a  creditor  of  the  deceased  and  to  have  the  right,  as 
such,  to  be  present  at  the  scrutiny  of  the  papers  of  which  Hussein 
Pacha  died  possessed. 

El-melik  was  an  Algerian  Jew,  who  became  French  by  virtue 
of  the  decree  of  October  24,  1870,  rendered  at  Tours  at  the 
instance  of  M.  Cremieux. 

The  presumption  was  that  El-melik  was  not  a  creditor  of  the 
deceased.  A  decision  of  the  court  of  Lucca  (March,  1887),  con- 
firmed by  the  Court  of  Appeals  in  Florence  (December  16,  1887), 
declared,  on  the  contrary,  that  he  was  presumed  to  be  a  debtor  of 
Hussein  Pacha,  as  he  had  not  rendered  his  accounts.  The  French 
Consul,  having  to  do  with  a  claim  which  was  not  that  of  an  Italian 


THE  FRENCH  CONSULATE  AT  FLORENCE  35 

or  of  the  subject  of  a  third  power,  refused  El-melik,  a  French  sub- 
ject, the  right  of  intervening  unless  he  presented  himself  equipped 
with  a  decision  of  the  French  courts  authorizing  it. 

El-melik  refused  to  accept  the  consul's  ruling;  and  although  a 
Frenchman,  summoned  the  French  Consul  before  the  Italian 
court.  The  summons  was  served  on  November  8,  1887.  The 
French  Consul  asked  the  advice  of  local  lawyers,  who  were  of 
the  opinion  that  he  was  not  obliged  to  appear  as  respondent  in 
such  an  action,  and  in  consequence  he  did  not  appear. 

On  December  20,  1887,  the  French  Consulate  was  notified 
of  a  judgment  by  default,  dated  the  i7th  of  the  same  month, 
ordering  the  sequestration  of  the  papers  pertaining  to  the  property, 
and  the  dispossession  of  the  consul  of  the  goods  and  effects  per- 
taining to  the  property,  with  provisional  execution. 

The  consul,  though  he  considered  the  judgment  rendered  against 
him  inapplicable,  was,  out  of  courtesy  to  the  country  to  which  he 
was  accredited,  preparing  to  lodge  complaint,  when  the  next  day, 
December  22,  1887,  during  his  absence,  the  pretor  presented  him- 
self at  the  office  of  the  consulate  and  called  upon  the  chancellor 
to  allow  the  execution  of  the  judgment  by  default  of  December  17. 

The  chancellor  of  the  consulate,  M.  Langlade,  declared  to  the 
pretor:  (i)  that,  waiving  an  inquiry  into  the  legal  aspects  of  the 
case,  he  could  not,  in  his  position  as  custodian  of  the  archives, 
without  order  of  the  consul,  allow  a  local  authority  to  enter  the 
office  of  the  chancellery;  (2)  that  the  locked  room  in  which  the 
papers  of  Hussein  Pacha  were,  was  also  used  for  the  consular 
archives  and  the  judicial  records,  and  that  their  inviolability  was 
assured  by  the  Franco-Italian  Treaty  of  1862. 

The  Florentine  pretor  sent  for  the  police  and  a  locksmith.  He 
ordered  the  door  of  the  room  containing  the  archives  and  rec- 
ords to  be  broken  open;  then  entering,  he  proceeded  to  sequester 
the  papers  and  documents  which  he  thought  belonged  to  the 
property,  and  thereto  affixed  his  seals.  In  point  of  fact,  among 
these  papers  were  some  belonging  to  the  property  in  question, 
while  others  belonged  to  the  consular  archives,  notably  a  file  of 
official  documents  relating  to  the  year  1877.  (This  fact  was  brought 
out  in  the  protest  made  December  26^  1887,  by  the  foreign  con- 
suls stationed  at  Florence.) 


36  CONSULS 

The  chancellor  drew  up  forthwith  an  official  report  stating  the 
violation  of  the  consular  premises  manu  militari.  The  protest 
was  immediately  brought  to  the  attention  of  the  Italian  Govern- 
ment by  the  consul  and  the  French  Ambassador,  M.  de  Mouy. 

The  incident  involved  a  question  of  principle  of  the  greatest  im- 
portance for  diplomatic  relations;  moreover,  all  the  governments 
represented  in  Italy  were  affected.  The  consuls  of  the  differ- 
ent nations  at  Florence  held  a  meeting  under  the  presidency  of 
their  dean,  Mr.  Colnaghi,  the  British  Consul,  to  draw  up  a 
protest.  The  drafting  of  this  document  was  concluded  December 
26,  1887.  It  stated  that  the  acts  committed  by  the  Italian  pretor 
at  the  French  Consulate  at  Florence  were  in  violation  not  only 
of  the  Franco-Italian  Convention  of  1862,  but  also  of  the  funda- 
mental principles  of  the  law  of  nations. 

The  consuls,  upon  deliberation,  voted  unanimously  (the  French 
Consul  excepted)  the  folio  whig  motion:  "In  view  of  the  gravity 
of  the  acts  of  which  the  above-named  consuls  have  taken  cog- 
nizance, it  has  been  decided  that  each  of  them  should  refer  the 
matter  to  his  own  government,  and  the  present  official  report 
has  been  signed  by  all  the  parties,  who  have  concluded  that  the 
original  should  be  placed  on  file  in  the  British  Chancellery  under 
protection  of  its  inviolability."  This  important  act  was  com- 
municated January  15,  1888,  to  the  various  governments  by 
their  respective  ambassadors  accredited  at  Rome. 

On  the  vigorous  representations  of  the  Cabinet  of  Paris  to  the 
Cabinet  of  the  Quirinal,  negotiations  were  opened. 

In  the  meantime,  while  the  two  governments  were  devoting 
themselves  to  a  thorough  investigation  of  the  alleged  facts,  El- 
melik  continued  his  suit.  Indeed,  at  the  instance  of  El-melik, 
the  parties  concerned  were  on  January  18,  1888,  summoned  to  ap- 
pear two  days  later  (January  20)  at  the  French  Consulate  to 
witness  the  pretor  Tosini  break  the  seals  affixed  by  him  Decem- 
ber 22,  1887,  and  draw  up  an  inventory  of  the  effects  of  Hussein 
Pacha. 

The  announcement  of  this  further  proceeding  at  a  time  when 
negotiations  were  still  pending  called  forth  protests  from  France. 
The  Italian  Government  made  reply  through  semi-official  organs 
that  the  matter  at  issue  was  only  an  action  of  judicial  procedure 


THE  FRENCH  CONSULATE  AT  FLORENCE  37 

belonging  to  the  courts,  that  it  was  not  for  the  government  to 
intervene,  and  that  consequently  there  could  not  be  imputed 
to  the  government  action  which  would  take  place  entirely  with- 
out its  jurisdiction. 

Nevertheless,  the  Italian  Cabinet  notified  M.  de  Mouy,  French 
Ambassador  at  Rome,  and  General  Menabrea,  Italian  Ambassa- 
dor at  Paris,  that  the  breaking  of  the  Italian  seals  on  Hussein's 
effects  had  by  order  been  indefinitely  postponed. 

General  Menabrea  sent  to  Rome  M.  Ressman,  Italian  Minis- 
ter Plenipotentiary  at  Paris,  to  see  M.  Crispi,  President  of  the 
Council  of  Ministers. 

A  fresh  inquiry  was  instituted  at  Florence  by  the  prefect  of  the 
city  and  the  attorney-general  in  order  to  complete  and  rectify 
the  brief  account  of  the  matter  first  sent  in  to  their  government 
by  the  Italian  authorities. 

The  investigation  and  the  discussion  of  the  judicial  questions  in- 
volved in  the  incident  were  brought  before  the  board  of  disputed 
diplomatic  claims  acting  for  the  Consulta  at  Rome.  M.  Canon- 
ico,  a  senator  and  judge  in  the  Court  of  Appeals,  was  commissioned 
to  make  the  report. 

M.  Crispi,  President  of  the  Council,  and  M.  Zanardelli,  Cus- 
todian of  the  Seals,  both  advocates  and  jurisconsults  of  the  first 
rank,  personally  studied  the  points  of  law  involved  in  the  case. 

Finally,  on  January  21,  1888,  at  a  time  when  the  Council  of 
Ministers  was  in  session  at  the  Elysee  under  the  presidency  of 
M.  Carnot,  President  of  the  Republic,  General  Menabrea  pre- 
sented himself  there  at  the  palace  and  sent  word  to  M.  Flourens, 
Minister  for  Foreign  Affairs,  that  he  had  a  communication  to 
make  to  him. 

The  Minister  for  Foreign  Affairs,  leaving  the  Council,  immedi- 
ately received  the  Italian  Ambassador,  who  communicated  to 
him  a  dispatch  received  from  his  government,  indicating  the 
solution  proposed  by  Italy  for  the  conclusion  of  the  difference. 

The  official  note  of  the  French  Government  on  this  subject, 
communicated  in  the  afternoon  of  January  21,  1888,  was  as 
follows: 

'"M.  Flourens,  Minister  for  Foreign  Affairs,  this  morning  re- 
ceived the  Italian  Ambassador,  General  Menabrea,  who  sought 


38  OFFICERS 

him  out  at  the  Elysee  during  a  meeting  of  the  Council  of  Minis- 
ters in  order  to  communicate  to  him  a  telegram  from  M.  Crispi, 
in  consequence  of  which  the  incident  at]  Florence  may  be  con- 
sidered closed. 

"The  pretor,  Tosini,  will  be  transferred  so  as  to  have  no  further 
contact  with  the  French  Consul  at  Florence. 

"The  effects  left  by  Hussein  will  be  dealt  with  conformably 
to  the  clauses  of  the  convention  between  Italy  and  Tunis  in  1868, 
the  provisions  of  which  have  never  been  questioned  by  our  Cabi- 
net, the  Treaty  of  the  Bardo  having  recognized  all  the  conven- 
tions and  international  treaties  anterior  to  its  signature. 

"The  French  Consul  at  Florence  will  not  be  censured." 

Following  this  agreement,  the  pretor,  Tosini,  of  Florence  was 
censured  and  transferred  elsewhere.  The  Berliner  Tageblatt  an- 
nounced, February  19,  1888,  that  this  magistrate  had  been 
granted  advancement.  But  this  information  has  since  been  of- 
ficially denied. 

(Translation.  Journal  du  Droit  International  Priv6  [1888], 
vol.  xv,  pp.  53-57.) 


§3.   OFFICERS 


THE  CASE  OF  THE  FORTE  (1863) 

WHILE  the  discussion  between  Great  Britain  and  Brazil  rela- 
tive to  the  plundering  of  the  barque  Prince  of  Wales  was  in  prog- 
ress, Rear-Admiral  Warren  reported  to  the  British  Minister  at 
Rio  de  Janeiro  "a  disagreeable  incident,"  which  he  described  as  a 
"brutal  outrage"  on  three  officers  of  his  flagship,  the  Forte,  by 
the  Brazilian  guard  stationed  on  Tijuca  Hill.  The  officers  in  ques- 
tion were  the  chaplain,  a  lieutenant,  and  a  midshipman.  It  was 
stated  that  at  7  o'clock  on  a  certain  evening,  while  they  were  pass- 
ing the  police  guardhouse  at  Tijuca,  a  sentinel  advanced  and 
made  a  motion  with  his  musket;  that  the  chaplain  inquired, 
"Que  quere  V.?"  that  the  sentinel  then  struck  him  with  his 
musket,  attempted  to  stab  him  with  the  bayonet,  and  called  the 


THE  CASE  OF  THE  FORTE  39 

guards,  who  rushed  upon  him  with  bayonets  and  swords;  that  all 
three  officers  were  then  arrested  and- confined  in  the  guardhouse; 
that  on  the  next  morning  they  were  marched  through  the  streets 
of  Rio  under  escort,  though  they  offered  to  hire  a  carriage;  that 
at  the  Rio  police  office,  though  they  gave  then-  names  and  rank, 
as  they  had  done  the  evening  before  at  the  guardhouse,  they  were 
kept  for  two  hours  in  a  filthy  den  with  men  and  boys  of  the  lowest 
grade;  that  they  were  then,  at  the  request  of  the  British  Consul, 
with  whom  they  had  been  permitted  to  communicate,  removed 
to  a  better  prison,  and  were  afterward  taken  hi  a  carriage  to  a 
barrack  and  well  treated;  and  that  on  the  morning  of  the  second 
day  after  then*  arrest  they  were  released  by  order  of  the  chief  of 
police. 

On  the  part  of  the  Brazilian  Government  it  was  stated  that 
"three  foreigners,  having  dined  at  the  hotel  of  Robert  Bennett, 
on  the  Tijuca  Hill,  where  they  had  two  bottles  of  Bordeaux  wine 
and  one-half  bottle  of  Cognac,  were  proceeding  to  the  city;" 
that  "the  said  foreigners"  annoyed  the  passers-by,  "attempting  to 
unhorse  an  equestrian  who  was  going  home  quietly,  and  violently 
seizing  the  reins  of  his  horse;"  that  when  they  arrived  at  the 
guardhouse  they  mounted  the  steps  and  approached  the  sentinel, 
one  of  them  asking,  "What  are  you  doing  there? "  that  the  sentinel 
told  them  to  retire,  when  they  broke  out  into  threats  and  began 
to  strike  him  with  their  sticks  so  that  he  was  compelled  to  defend 
himself  with  the  stock  of  his  gun  and  call  the  guards;  that  they 
resisted  arrest,  "laying  hold  of  the  soldiers  and  falling  on  the 
ground  with  them;"  that,  being  deposited  in  the  guardhouse,  they 
refused  to  answer  any  questions,  "showing  themselves  haughty 
and  scornful;"  that,  though  they  refused  to  give  their  names,  the 
commandant  treated  them  with  kindness,  furnishing  them,  at  then- 
request,  with  writing  paper  and  playing  cards,  and  placed  at  then- 
disposal  his  own  bed,  the  only  one  in  the  guardhouse;  that  they 
"were  not  completely  drunk,"  but  "appeared  not  to  be  in  full 
possession  of  their  mental  faculties;"  that  when  they  were  brought 
into  the  city,  they  were  placed  not  in  the  slaves'  prison,  but 
in  that  of  freemen,  where  there  might,  indeed,  be  prisoners  of 
color,  as  the  Brazilian  legislation  made  no  discrimination  on  that 
ground;  that  as  soon  as  their  condition  was  made  known  to  the 


40  OFFICERS 

chief  of  police  they  were  transferred  to  the  barracks  of  the  police 
corps  and  an  order  was  given  for  a  circumstantial  report  on  the 
case;  and  that  as  it  appeared  by  this  report  that  "the  acts  of  the 
English  officers  were  merely  the  result  of  the  state  in  which  they 
were  at  the  time,"  an  order  was  given  for  their  discharge. 

The  English  officers  denied  the  allegations  as  to  then*  intoxica- 
tion, their  annoyance  of  persons  on  the  road,  and  their  use  of 
threats  toward  the  sentry.  They  declared  that  no  resistance  was 
made  to  the  guards  by  two  of  the  officers,  and  that  resistance  was 
made  by  the  third  only  after  he  had  received  gross  treatment. 
They  also  stated  that  when  taken  to  the  guardhouse  they  gave 
their  names  to  the  ensign,  both  verbally  and  in  writing,  through 
an  interpreter.  They  admitted  that  the  officer  of  the  guard  pro- 
vided them  with  paper  and  with  a  pack  of  cards,  and  offered  a 
bed  to  one  of  them ;  but  they  alleged  that  he  broke  his  promise  to 
forward  their  letters,  which  never  reached  their  destination. 

The  British  Minister  at  Rio  was  instructed  by  Earl  Russell  to 
demand  (i)  that  the  ensign  of  the  guard  be  dismissed  from  the 
service;  (2)  that  the  sentry  who  began  the  attack  be  adequately 
punished;  (3)  that  an  apology  be  made  by  the  Brazilian  Govern- 
ment; and  (4)  that  the  chief  of  police  of  Rio  de  Janeiro  be  publicly 
censured. 

Demands  having  thus  been  formulated  in  the  case  of  the  Forte, 
as  well  as  in  that  of  the  Prince  of  Wales,  steps  were  taken  to  resort 
to  reprisals  in  the  event  of  the  requisite  redress  being  denied. 
The  British  Minister  at  Rio  was  instructed  that  a  ship  or  some 
other  portion  of  public  property  might  be  seized  and  held  as  secur- 
ity till  justice  should  be  done;  but  that  as  such  a  course  might 
lead  to  a  collision,  it  might  be  preferable  to  seize  private  property. 
This  was,  however,  left  to  the  discretion  of  Admiral  Warren,  who, 
after  the  Brazilian  Government  had  refused  to  yield  to  his  gov- 
ernment's demands,  seized  at  sea  and  detained  five  Brazilian  ves- 
sels. It  was  subsequently  arranged  that  the  claim  in  the  case  of 
the  Prince  of  Wales  should  be  paid  under  protest  and  the  captured 
vessels  released,  the  Brazilian  Government  assuming  responsi- 
bility for  any  losses  which  might  have  resulted  to  the  citizens  of 
third  countries,  and  that  the  case  of  the  Forte  should  be  submitted 
to  arbitration. 


THE  CASE  OF  THE  FORTE  41 

The  King  of  the  Belgians,  who  was  chosen  as  arbitrator,  made 
the  following  award:1 

"We,  Leopold,  King  of  the  Belgians,  having  accepted  the  du- 
ties of  arbitrator  conferred  on  us  by  the  common  consent  of  Great 
Britain  and  Brazil,  in  respect  to  the  difference  raised  between 
these  states  in  regard  to  the  arrest,  June  17,  1862,  by  the  Brazil- 
ian police  guard  stationed  at  Tijuca,  of  three  officers  of  the  British 
marine,  and  the  incidents  which  took  place  subsequent  to,  and 
on  the  occasion  of  this  arrest; 

"Animated  by  a  sincere  desire  to  render  a  strictly  impartial 
decision  in  acknowledgment  of  the  faith  placed  in  us  by  the 
said  states; 

"Having  to  this  end  duly  examined  and  maturely  weighed  all 
the  documents  which  have  been  produced  on  one  side  and  on  the 
other; 

"Being  desirous,  in  order  to  fulfill  the  charge  which  we  have 
accepted,  of  bringing  to  the  knowledge  of  the  high  parties  con- 
cerned the  result  of  our  examination  as  well  as  our  arbitral  de- 
cision on  the  question  submitted  to  us  in  the  following  terms,  to 
wit: 

"If  the  way  in  which  Brazilian  laws  were  applied  to  the  English 
officers  could  be  considered  an  offense  to  the  British  navy; 

"Considering  that  it  is  by  no  means  proved  that  the  conflict 
arose  from  an  act  of  the  Brazilian  agents,  who  could  not  reasona- 
bly have  any  motive  for  provocation; 

"Considering  that  the  officers  at  the  time  of  their  arrest  were 
not  clothed  with  the  insignia  of  their  rank,  and  that  in  a  port  fre- 
quented by  so  many  strangers  they  could  not  suppose  it  possible 
to  have  their  mere  word  accepted  that  they  belonged  to  the 
British  navy  so  long  as  no  visible  indication  of  their  character  was 
offered  in  support  of  their  statement;  that,  consequently,  as  soon 
as  they  were  arrested,  it  was  their  duty  to  submit  to  the  existing 
laws  and  regulations  and  that  they  had  no  right  to  demand  any 
different  treatment  from  that  which  would  be  accorded  to  any 
other  persons  in  the  same  circumstances; 

"Considering  that  while  it  is  impossible  to  ignore  that  the  in- 
cidents which  took  place  were  disagreeable  to  the  English  officers 
1  Translation.  British  and  Foreign  Slate  Papers,  vol.  53,  pp.  150-51. 


42  OFFICERS 

and  that  the  treatment  to  which  they  were  subjected  must  have 
seemed  to  them  unusually  severe,  nevertheless  it  must  be  taken 
into  account  that  when  by  the  declaration  of  the  English  Vice- 
Consul  the  social  position  of  these  officers  was  duly  established, 
measures  were  immediately  taken  to  assure  them  of  the  special 
consideration  in  which  they  were  held,  and  they  were  thereupon 
set  at  liberty  without  further  ado; 

"Considering  that  the  officer  who  ordered  their  release  did  so 
as  soon  as  it  was  possible,  and  that  in  so  doing  he  was  actuated 
by  the  desire  to  spare  these  officers  the  vexatious  consequences 
which  according  to  the  provisions  of  the  law  must  necessarily 
have  resulted  to  them  had  any  further  consideration  been  given 
to  their  action; 

"  Considering  that,  in  his  report  of  July  6,  1862,  the  prefect  of 
police  was  not  only  called  upon  to  make  a  report  of  what  took 
place  but  that  he  was  also  obliged  to  explain  his  conduct  to  his 
superior  together  with  the  grounds  for  the  leniency  which  he  had 
shown; 

"  Considering  moreover  that  he  was  acting  in  a  perfectly  legiti- 
mate manner  in  expressing  himself  as  he  did,  and  that  he  cannot 
be  considered  to  have  had  any  malevolent  intention; 

"We  are  of  the  opinion  that  in  the  manner  in  which  Brazilian 
laws  were  applied  to  the  English  officers  there  was  no  offense, 
premeditated  or  otherwise,  toward  the  British  navy. 

"Done  and  given  in  duplicate,  under  our  royal  seal,  at  Chateau 
de  Lachen,  the  eighteenth  day  of  the  month  of  June,  1863. 

"LEOPOLD  I." 

After  this  decision  in  favor  of  Brazil  was  rendered,  Mr.  (after- 
ward Sir)  Edward  Thornton  was  sent  by  the  British  Government 
as  envoy  extraordinary  and  minister  plenipotentiary  on  a  special 
mission  to  express  to  the  Brazilian  Government  the  regret  of 
Her  Britannic  Majesty  for  the  circumstances  under  which 
friendly  intercourse  between  the  two  countries  was  suspended; 
to  disavow  any  intention  to  offend  the  dignity  of  Brazil  by  the 
measures  that  were  taken,  and  to  propose  the  renewal  of  diplo- 
matic relations.  The  Emperor  replied,  saying  that  it  was  with 
sincere  satisfaction  that  he  renewed  diplomatic  relations,  and 


CAPTAIN  GAMBLE'S  CASE  43 

that  the  policy  of  Brazil  would  continue  to  be  animated  with  a 
spirit  of  justice  toward  all  other  nations. 

(Extracted,  except   for  the  translated  portion,  from  Moore: 
International  Arbitrations,  vol.  v,  pp.  4926-28.) 


CAPTAIN   GAMBLE'S   CASE   (1818) 

IN  a  note  dated  January  22,  1818,  to  Mr.  Hyde  de  Neuville, 
French  Minister  at  Washington,  Mr.  Adams,  Secretary  of  State, 
offered  the  following  explanations: 

"At  the  time  when  I  had  the  honor  of  receiving  your  letter  of  • 
1 6  October  last,  concerning  a  transaction  in  the  port  of  Marseilles, 
in  which  Captain  Gamble  of  the  sloop-of-war  Efie,  a  public  ship 
in  the  service  of  the  United  States,  was  summoned  before  the 
tribunal  of  commerce  at  that  port  for  damage  asserted  to  have 
been  done  to  the  cable  of  an  English  vessel  called  the  Herald, 
and  was  alleged  to  have  prevented  the  execution  of  the  citation 
upon  him,  on  board  of  his  own  vessel,  that  officer  being  absent 
from  the  United  States,  it  was  thought  due  to  justice,  before  I 
should  answer  your  letter,  to  wait  for  his  report  upon  the  circum- 
stances of  the  case.  That  report  was  expected  to  be  shortly  re- 
ceived, having  been  already  required  of  him,  upon  a  complaint 
which  had  been  received  at  this  Department  from  the  British 
Minister,  Mr.  Bagot,  in  behalf  of  Captain  Snowden,  the  master 
of  the  British  vessel,  the  cable  of  which  was  stated  to  have  been 
damaged.  Captain  Gamble's  report  has  accordingly  been  re- 
ceived; from  which  it  appears  that  the  place  occupied  by  the  Erie, 
at  the  time  when  the  accident  happened,  had  been  assigned  to 
Captain  Gamble,  at  the  time  of  his  arrival  in  the  harbor,  by  the 
proper  officer  of  the  port,  and  without  any  objection  from  the 
master  of  the  English  vessel;  that  the  damage  done  to  the  cable 
was  altogether  accidental,  without  any  intention  or  fault  of  Cap- 
tain Gamble;  that  the  conduct  of  the  master  of  the  Herald  was 
rude  and  offensive  towards  him,  and  that,  in  declining  to  receive 
the  citation  of  the  tribunal  of  commerce,  he  had  reason  to  believe 
that  it  would  be  received  by-  the  consul  of  the  United  States. 

"I  am  directed  to  assure  you,  sir,  that  the  President  has  a  deep 


44  OFFICERS 

sense  of  the  respect  due  by  the  officers,  commanding  vessels  of 
war,  to  the  institutions  and  authorities  of  the  foreign  ports  into 
which  they  are  received.  He  is  persuaded  at  the  same  time  that 
your  government  will  duly  appreciate  the  f eelings  and  the  sense  of 
duty  to  his  own  flag,  of  an  officer  commanding  a  public  vessel  of 
his  nation  in  a  foreign  port.  The  British  Minister  has  been  in- 
formed that  the  damages  awarded  by  the  decision  of  the  tribunal 
of  commerce  to  the  master  of  the  Herald,  together  with  the  charges 
of  the  suit,  will  be  paid  by  this  government,  and  it  is  not  doubted 
that  this  manifestation  of  respect  to  the  decision  of  the  tribunal  of 
commerce  of  Marseilles  will  be  received  by  your  sovereign  as  an 
evidence  of  the  spirit  of  amity  and  of  good  harmony  which  the 
United  States  will  be  on  all  occasions  earnestly  desirous  of  cultivat- 
ing with  his  government." 

(Moore:  Digest  of  International  Law,  vol.  n,  pp.  585-86.) 


PROTECTION  OF  AMERICANS  IN  TURKEY  (1895) 

APRIL  7, 1895,  the  Turkish  Minister  at  Washington,  referring  to 
a  report  in  the  press  that  two  United  States  men-of-war  were  to 
be  sent  into  Turkish  waters  on  account  of  rumors  that  the  safety 
of  Christians  was  menaced,  inquired  whether  it  was  true,  as  was 
publicly  asserted,  "that  the  American  naval  authorities  have  been 
instructed  to  confer  with  your  diplomatic  and  consular  authori- 
ties with  a  view  to  the  examination  of  certain  matters  which  come 
within  the  exclusive  province  of  the  latter." 

The  Department  of  State  replied  that  the  intended  visit  of  the 
ships  was  "without  any  unfriendly  purpose,"  and  that  their  pres- 
ence on  the  coasts  of  Asia  Minor  would  "afford  an  opportunity  to 
learn  whether  there  is  just  ground  for  the  apprehensions  of  inse- 
curity of  life  and  property,"  which  American  citizens  in  that  re- 
gion had  expressed  and  which  had  called  forth  assurances  of  pro- 
tection from  the  Porte. 

The  instructions  to  the  naval  officers  directed  them  to  visit  cer- 
tain places  on  the  coast  of  Asia  Minor  and  ascertain,  by  conference 
with  the  United  States  consuls  and  citizens  there,  what  founda- 
tion existed  for  the  rumors  that  Christians  were  in  danger,  and, 


RESTORATION  OF  ORDER  IN  SAMOA  45 

in  case  they  should  discover  ground  for  anxiety,  to  intimate  to  the 
Turkish  officials  that  it  was  the  intention  of  the  United  States  to 
afford  protection  to  its  citizens. 

In  a  later  communication  of  June  6,  1895,  addressed  by  the 
Department  of  State  to  the  Turkish  Minister,  Mr.  Uhl,  Acting 
Secretary  of  State  said: 

"It  is  proper  for  me  to  recur  to  that  part  of  your  .  .  .  note  of 
April  7  last,  in  which  you  asked  to  be  informed  whether  the  Ameri- 
can naval  authorities  had  been  instructed  to  confer  with  the 
diplomatic  and  consular  authorities  touching  matters  which  you 
deem  to  be  'within  the  exclusive  province  of  the  latter.' 

"I  cannot  suppose  you  thereby  intended  to  question  the  right 
of  this  government  to  use  its  several  agencies  in  its  own  discretion 
for  the  purpose  of  gaining  information  or  carrying  out  its  deter- 
mined policies,  and  I  assume  you  had  in  view  merely  the  per- 
formance of  the  usual  formalities  of  international  representation. 
Our  naval  commanders,  carrying  neither  diplomatic  credentials 
nor  consular  commissions,  discharge  no  representative  duty  save 
in  conformity  with  the  ordinary  etiquette  of  the  naval  intercourse 
of  nations.  This  mission,  I  am  pleased  to  learn,  has  been  fulfilled 
with  friendly  cordiality  by  Admiral  Kirkland  and  his  commanders, 
consistently  with  the  instructions  given  to  them  as  stated  in  my 
note  to  you,  No.  10,  of  April  8,  1895." 

(Modified  extract  from  Moore:  Digest  of  International  Law,  vol. 
iv,  pp.  618-19.) 


RESTORATION  OF  ORDER  IN  SAMOA  (1889) 

AFTER  a  native  revolt  in  Samoa  (September,  1888),  which  had 
resulted  in  the  landing  of  German  forces  there,  Admiral  Kimberly 
was  ordered  by  the  Government  of  the  United  States  to  proceed 
in  his  flagship  to  Apia. 

Admiral  Kimberly  was  instructed  that  the  United  States  was 
willing  to  cooperate,  in  accordance  with  the  German  invitation  of 
January  10,  1889,  in  restoring  order  in  Samoa  "on  the  basis  of  the 
full  preservation  of  American  treaty  rights  and  Samoan  author- 
ity, as  recognized  and  agreed  to  by  Germany,  Great  Britain,  and 
the  United  States,"  and  that  the  German  Government  had  been 


46  SOVEREIGNS:  HEADS  OF  STATES 

so  informed.  He  was  to  extend  full  protection  and  defense  to 
American  citizens  and  property,  and  inform  himself  as  to  the 
situation;  to  protest  against  the  subjugation  and  displacement  of 
the  native  government  by  Germany,  as  in  violation  of  the  posi- 
tive agreement  and  understanding  between  the  treaty  powers, 
but  to  inform  the  representatives  of  the  British  and  German  Gov- 
ernments of  his  readiness  to  cooperate  in  causing  all  treaty  rights 
to  be  respected  and  in  restoring  peace  and  order  on  the  basis  of 
the  recognition  of  the  Samoan  right  to  independence. 

(Modified  extract  from  Moore :  Digest  of  International  Law,  vol. 
I,  pp.  544-45-) 

§  4.   SOVEREIGNS:  HEADS  OF  STATES 


DE  HABER  v.  THE  QUEEN  OF  PORTUGAL  (1851) 

THE  personal  immunity  of  a  foreign  sovereign  from  suit  and 
outrage  is  so  well  recognized  and  respected  as  to  make  it  difficult 
to  find  a  suitable  illustrative  case.  De  Haber  v.  The  Queen  of  Portu- 
gal is  not  really  in  point,  since  the  suit  was  brought  against  Dona 
Maria  da  Gloria,  Queen  of  Portugal,  in  her  public  capacity.  At 
the  close  of  the  arguments  in  that  case  Lord  Campbell,  Chief- 
Justice,  in  his  judgment  delivered  May  28,  1851,  in  the  course  of 
which  he  made  an  absolute  rule  prohibiting  the  Lord  Mayor's 
Court  from  proceeding  further  with  the  suit,  remarked:  "To  cite 
a  foreign  potentate  in  a  municipal  court,  for  any  complaint  against 
him  in  his  public  capacity,  is  contrary  to  the  law  of  nations,  and 
an  insult  which  he  is  entitled  to  resent."  (Queen's  Bench  Reports, 
vol.  xvn,  pp.  196-214.) 


CHAPTER   II 

METHODS  OF  PROCEDURE  FOR  THE  SETTLE- 
MENT OF  INTERNATIONAL  DIFFERENCES 


§5.  DISCUSSION  AND   COMPROMISE 


COMPROMISE  through  discussion  is  the  very  essence  of  diplo- 
macy. The  representatives  entrusted  with  the  care  of  the  in- 
ternational interests  of  their  state  depend  upon  their  ordinary 
informal  and  friendly  intercourse  as  individuals  to  reach  a  satis- 
factory understanding  for  the  disposition  of  the  vast  majority 
of  questions  which  arise.  The  representative  of  each  government 
recognizes  that  the  other  will  firmly  maintain  those  views  which 
his  government  considers  as  essential  to  the  protection  of  its  in- 
terests and  as  the  expression  of  its  national  ideals,  but  he  will  at 
the  same  time  recognize  that  the  other  government  must  some- 
times cherish  views  opposed.  In  the  great  majority  of  cases,  where 
a  common  spirit  of  friendliness  prevails  and  both  are  actuated  by 
a  desire  to  reach  some  satisfactory  solution  of  the  difficulty  with- 
out sacrificing  the  principles  which  each  government  feels  it  must 
sustain,  there  is  little  difficulty  in  reaching  an  understanding. 
Such  a  result  may  be  effected  through  the  application  of  the  well- 
recognized  principles  of  international  law,  or  by  a  compromise 
which  takes  into  consideration  the  relative  importance  to  the 
governments  concerned  of  the  matter  in  dispute.  Even  in  those 
instances  where  any  compromise  at  all  may  seem  to  be  a  yield- 
ing upon  a  question  of  principle,  the  difficulty  can  often  be  ob- 
viated by  a  formal  notification  to  the  effect  that  the  compromise 
agreed  upon  shall  not  be  considered  as  a  precedent  to  bind  the 
government  in  its  future  action. 

We  may  divide  the  cases  which  come  before  diplomats  for  their 
consideration  into  three  classes: 


48  DISCUSSION  AND  COMPROMISE 

(1)  Those  which  may  be  arranged  by  the  simple  application  of 
the  principles  of  international  law  recognized  by  both  govern- 
ments.  In  such  a  case  diplomatic  discussion  is  necessary  only  to 
elucidate  the  true  principles. 

(2)  Those  cases  in  regard  to  which  the  two  governments  main- 
tain different  interpretations  of  the  law  applicable.    Such  instances 
may  be  settled  by  the  procedure  to  which  we  have  referred,  fail- 
ing which  the  intercourse  of  nations  still  holds  in  reserve  recourse 
to  certain  useful  methods,  such  as  mediation  or  arbitration. 

(3)  The  third  class  of  difficulties  relates  to  political  questions. 
The  absence  of  any  ruling  principle  of  international  law  to  which 
the  parties  can  appeal  interferes  with  the  application  of  arbitra- 
tion so  that  the  peaceful  solution  of  the  difficulty  has  to  rest  upon 
compromise  through  discussion,  perhaps  aided  by  the  mediation 
of  one  or  more  third  states.   The  success  which  a  state  attains  in 
the  maintenance  of  its  political  views  bears  a  direct  relation  to  its 
military  and  economic  strength  and  the  prestige  due  to  its  alli- 
ances.   The  recognition  of  this  situation  means  that  any  com- 
promise effected  by  diplomatic  discussion  must,  to  be  acceptable, 
take  into  account  the  relative  military  and  political  strength  of 
the  interested  governments. 

Whenever  the  delicate  machinery  of  diplomatic  negotiation 
has  succeeded  in  reaching  a  happy  compromise  in  settlement  of 
the  question  under  consideration,  it  is  important  to  preserve  for 
reference  some  record  of  this  agreement.  The  elasticity  of  diplo- 
macy and  the  scrupulous  good  faith  which  governments  so  gen- 
erally observe  in  their  transactions  do  not  make  it  necessary  to 
clothe  such  a  compromise  solution  in  any  particular  form.  Or- 
dinarily an  exchange  of  notes  suffices.  In  certain  cases,  however, 
when  the  matter  is  of  sufficient  importance,  or  when  it  is  intended 
to  establish  a  rule  to  fix  the  rights  of  individuals  within  the  state, 
the  agreement  or  compromise  is  formally  incorporated  in  the  pro- 
visions of  a  treaty. 


THE  CAROLINE  ISLANDS  49 

§6.   MEDIATION  AND   GOOD   OFFICES 


THE  CAROLINE  ISLANDS   (1885) 

IN  1885,  His  Holiness  Leo  XHI  made,  as  mediator  between 
Germany  and  Spain  in  the  controversy  touching  the  Caroline  and 
Pelew  Islands,  the  following  "proposition": 

"The  discovery  made  by  Spain  in  the  sixteenth  century  of  the 
Caroline  and  Pelew  Islands,  which  form  part  of  the  archipelago, 
and  a  series  of  acts  accomplished  at  different  periods  by  the 
Spanish  Government  in  those  same  islands  for  the  good  of  the 
natives,  have,  in  the  conviction  of  that  government  and  of  that 
nation,  created  a  title  to  the  sovereignty  founded  on  the  maxims 
of  international  law  invoked  and  followed  at  that  period  in  the  case 
of  analogous  disputes.  In  fact,  when  one  examines  the  history 
of  the  above-mentioned  acts,  the  authority  of  which  is  confirmed 
by  divers  documents  in  the  archives  of  the  Propaganda,  one  can- 
not fail  to  recognize  the  beneficial  work  of  Spain  towards  those 
islanders.  It  is  also  to  be  remarked  that  no  other  government  has 
ever  exercised  a  similar  action  over  them.  This  explains  the  con- 
stant tradition,  which  must  be  taken  into  account,  and  the  convic- 
tion of  the  Spanish  people  relative  to  that  sovereignty — tradition 
and  conviction  which  two  months  ago  were  manifested  with  such 
an  ardor  and  animosity,  capable  for  a  moment  of  compromising 
the  internal  peace  and  relations  of  two  friendly  governments. 

"On  the  other  hand,  Germany  and  England  in  1875  expressly 
informed  the  Spanish  Government  that  they  would  not  recognize 
the  sovereignty  of  Spain  over  the  said  islands.  On  the  contrary, 
the  Imperial  Government  thought  it  is  the  effective  occupation  of 
a  territory  which  creates  the  sovereignty,  occupation  which  was 
never  carried  into  effect  on  the  part  of  Spain  in  the  Caroline  Is- 
lands. It  was  in  conformity  with  this  principle  that  it  acted  in  the 
Island  of  Yap,  and  in  that,  as  on  its  part  the  Spanish  Government 
has  also  done,  the  mediator  is  pleased  to  recognize  the  complete 
loyalty  of  the  Imperial  Government. 

"Consequently,  and  in  order  that  this  divergence  of  views  be- 
tween the  two  governments  be  not  an  obstacle  to  an  honorable 


SO  MEDIATION  AND  GOOD   OFFICES 

arrangement,  the  mediator,  after  having  well  considered  the  whole 
question,  proposes  that  in  the  new  convention  to  be  stipulated 
they  shall  observe  the  forms  of  the-  protocol  relative  to  the  Sooloo 
Archipelago  signed  at  Madrid  on  the  yth  of  March  last  between 
the  representatives  of  Great  Britain,  Germany,  and  Spain,  and 
that  the  following  points  be  adopted: 

"i.  To  confirm  the  sovereignty  of  Spain  over  the  Caroline  and 
Pelew  Islands. 

"2.  The  Spanish  Government,  to  render  her  sovereignty  effec- 
tive, engages  to  establish  as  quickly  as  possible  in  that  archipelago 
a  regular  administration  with  sufficient  force  to  guarantee  order 
and  the  rights  acquired. 

"3.  Spain  offers  to  Germany  full  and  entire  liberty  of  commerce 
and  navigation,  and  of  fishing  at  the  same  islands,  as  also  the 
right  of  establishing  a  naval  station  and  a  coal  depot. 

"4.  The  liberty  of  making  plantations  in  those  islands,  and  of 
founding  agricultural  establishments  on  the  same  footing  as 
Spanish  subjects,  to  be  also  guaranteed  to  Germany. 

"L.  CARD.  JACOBINI. 

"ROME,  FROM  THE  VATICAN,  October  22, 1885." 

This  proposition  was  accepted  by  the  governments  to  which  it 
was  made,  and  was  embodied  in  the  following  protocol: 

"The  undersigned,  His  Excellency  the  Marquis  de  Molins, 
Ambassador  of  His  Catholic  Majesty  near  the  Holy  See,  and  His 
Excellency  M.  de  Schloezer,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  of  His  Majesty  the  King  of  Prussia  near  the  Holy 
See,  being  duly  authorized  to  conclude  the  negotiations  which 
the  Governments  of  Spain  and  Germany,  under  the  accepted 
mediation  of  His  Holiness  the  Pope,  have  pursued  in  Madrid  and 
Berlin  relatively  to  the  rights  which  each  of  said  governments  may 
have  acquired  to  the  possession  of  the  Caroline  and  Pelew  Islands, 
considering  the  propositions  made  by  His  Holiness  as  a  basis  for  a 
mutual  understanding,  have  agreed  upon  the  following  articles  in 
accordance  with  the  propositions  of  the  august  mediator.  .  .  ."* 

(Moore:  International  Arbitrations,  vol.  v,  pp.  5043-46.) 

1  For  the  text  of  these  six  articles  signed  at  Rome  December,  1885,  making  ar- 
rangements for  the  carrying  into  effect  of  the  Pope's  "proposition,"  see  Moore's 
International  Arbitrations,  vol.  v,  pp.  5044-46. 


THE  CASE  OF  MARTIN  KOSZTA  51 

PROTECTION  OF  VENEZUELAN  CITIZENS 
IN  FRANCE   (1895) 

MARCH  12,  1895,  the  United  States  instructed  its  ambassador 
at  Paris  as  follows:  "At  the  request  of  the  Venezuelan  Govern- 
ment you  will,  with  the  acquiescence  of  the  Government  of  France, 
upon  the  retirement  of  the  Venezuelan  Minister  and  upon  ap- 
plication by  him,  afford  your  friendly  good  offices  for  the  protec- 
tion of  Venezuelan  citizens  in  France;  but  you  will  not  represent 
Venezuela  diplomatically,  nor  will  consuls  under  you  act  in  official 
representation  of  Venezuela."  The  French  Government  "ac- 
quiesced in  the  proposed  arrangement,  provided,  however,  that 
the  pending  diplomatic  questions  would  have  to  be  settled  be- 
tween France  and  Venezuela  themselves."  This  proviso  was  in 
accord  with  the  instruction  that  the  embassy  was  not  to  represent 
Venezuela  diplomatically. 

(Taken  textually  from  Moore:  Digest  of  International  Law,  vol. 
iv,  p.  59I-) 


THE  CASE  OF  MARTIN  KOSZTA1   (1853) 

ON  the  morning  of  July  2,  1853,  Commander  Ingraham,  of  the 
U.S.S.  St.  Louis  at  Smyrna,  demanded  the  release  of  Martin 
Koszta  detained  against  his  will  on  board  the  Austrian  brig-of- 
war  Huszar,  threatening,  if  he  did  not  receive  a  satisfactory  an- 
swer by  four  o'clock  in  the  afternoon,  that  he  should  cause  the 
prisoner  to  be  taken  away  by  main  force.  The  Austrian  com- 
mander was  preparing  to  resist,  and  as  the  hour  approached  the 
American  commander  ranged  himself  alongside  the  Huszar  and 
brought  his  guns  to  bear  upon  her.  The  conflict  was  prevented 
through  an  agreement  signed  just  in  tune  by  the  American  Con- 
sul and  the  Austrian  Consul-General,  in  conformity  with  the 
terms  of  which  Koszta  was  placed  in  the  custody  of  the  French 
Consul-General,  who  was  not  to  deliver  him  up  except  upon  a 
requisition  of  both  those  officials.  Such  a  requisition,  addressed 
to  the  French  Consul-General,  was  signed  by  them  October  14, 

1  For  the  discussions  concerning  this  famous  case,  see  p.  298,  where  the  case  is 
more  fully  treated. 


52  CONFERENCES 

1853,  under  instructions  received  from  the  American  and  Aus- 
trian Ministers  at  Constantinople;  and  on  the  same  day  Koszta 
took  passage  on  the  bark  Sultana  for  Boston.  The  Austrian 
Minister  at  Constantinople  had  sought  in  the  correspondence  to 
reserve  the  right  of  Austria  to  proceed  against  Koszta  in  case  he 
should  again  be  found  in  the  Turkish  dominions;  but  the  Ameri- 
can Consul  at  Smyrna  refused  to  sign  a  requisition  containing 
such  a  reservation,  and  the  requisition  on  which  Koszta  was,  with 
Austria's  concurrence,  actually  released,  was  unconditional. 

(Modified  extracts  from  Moore:  Digest  of  International  Law, 
vol.  m,  pp.  820,  845.) 


§7.    CONFERENCES 


THE  FIRST  HAGUE  PEACE  CONFERENCE  (1899) 

ON  August  24,  1898,  Count  Mouravieff,  Russian  Minister  for 
Foreign  Affairs,  at  the  regular  weekly  reception  of  the  diplomatic 
corps,  communicated  to  the  representatives  of  the  powers  a  copy 
of  a  rescript  from  Nicholas  II  calling  attention  to  the  evils  of  the 
burdensome  armaments  to  which  the  powers  of  the  world  were 
subjected  and  stating  that  the  Imperial  Government  believed 
that  "the  present  time"  was  "very  favorable  for  seeking,  through 
the  method  of  an  international  conference,  the  most  effective 
means  of  assuring  to  all  nations  the  benefits  of  a  real  and  lasting 
peace,  and  of  placing  before  all  the  question  of  ending  the  pro- 
gressive development  of  existing  armaments."  "Impressed  with 
this  sentiment,"  the  rescript  relates,  His  Majesty  had  been 
pleased  to  command  Count  Mouravieff  to  "propose  to  all  the 
governments  who  have  duly  accredited  representatives  at  the 
Imperial  Court,  the  holding  of  a  conference  to  consider  this  grave 
problem.  ..." 

The  United  States  accepted  this  invitation  without  delay,  but 
certain  of  the  European  powers  required  first  some  further  ex- 
planations as  to  the  nature  of  the  proposed  discussions,  especially 
in  view  of  the  general  misunderstanding  on  the  part  of  the  Eu- 
ropean press  of  the  meaning  of  the  Mouravieff  circular.  On  Sep- 


THE   FIRST  HAGUE   PEACE   CONFERENCE  53 

tember  4  an  official  explanation  appeared  in  the  Journal  of  St. 
Petersburg  explaining  that  the  purpose  of  the  conference  was  to  do 
away  with  the  excesses  of  the  "present  system  of  armed  peace" 
by  providing  for  a  "full  and  searching  investigation  of  this  ques- 
tion by  an  international  exchange  of  views."  The  explanation 
continues:  "Certain  other  questions,  difficult  of  solution,  but  of 
not  less  moment,  have  already  been  settled  in  this  century  in  a 
manner  which  has  done  justice  to  the  great  interests  of  humanity 
and  civilization.  The  results  which  in  this  connection  have  been 
obtained  at  international  conferences,  particularly  at  the  Con- 
gresses of  Vienna  and  Paris,  prove  what  the  united  endeavors  of 
governments  can  achieve  when  they  proceed  in  harmony  with 
public  opinion  and  the  needs  of  civilization.  .  .  ." 

Before  the  end  of  October  all  the  invited  states  had  accepted 
the  Russian  invitation.  On  January  n,  1899,  the  Russian  Gov- 
ernment issued  a  second  circular  containing  a  program  for  the 
work  of  the  conference,  which,  in  addition  to  the  matter  of  limit- 
ing the  increase  of  military  and  naval  armaments,  proposed  to 
discuss  the  regulation  of  the  use  of  certain  instruments  and 
methods  of  warfare  and  the  extension  of  the  provisions  of  the 
Geneva  Convention  (Red  Cross)  to  naval  warfare;  the  revision  of 
the  "declaration  in  regard  to  the  laws  and  customs  of  war,  elabo- 
rated in  1874  by  the  Brussels  Conference;"  and  finally  "the  ac- 
ceptance in  principle  of  the  usage  of  good  offices,  of  mediation, 
and  of  optional  arbitration  for  such  cases  as  lend  themselves  to  it, 
with  a  view  of  preventing  armed  conflicts  between  nations;  an 
understanding  upon  the  subject  of  their  mode  of  application,  and 
the  establishment  of  a  uniform  code  of  practice  in  then*  use." 

The  circular  closes  by  stating  that  all  questions  concerning  the 
political  relations  of  states  and  the  order  of  things  established  by 
treaties,  "as,  in  general,  all  questions  which  do  not  enter  directly 
into  the  program  adopted  by  the  cabinets  ought  to  be  absolutely 
excluded  from  the  deliberations  of  the  conference,"  and  suggests 
that  the  conference  should  not  meet  in  a  capital  of  one  of  the 
great  powers.  In  conformity  with  this  program  the  Government 
of  the  Netherlands,  on  April  7,  1899,  invited)  the  powers  to 
meet  at  The  Hague.  Twenty-six  states  accepted  the  invitation 
and  the  first  meeting  of  the  Conference  was  held  on  May  18, 


54  ARBITRATION,  ARBITRAL  PROCEDURE 

1899.  After  several  weeks  filled  with  important  discussions  the 
assembled  delegates  completed  their  labors  by  signing,  on  July 
29,  1899,  the  Final  Act  of  the  Conference  which  contains, 
among  other  conventions,  a  codification  of  the  laws  of  war 
based  upon  that  discussed  by  the  Conference  of  Brussels  which 
was  itself,  for  the  most  part,  a  reproduction  of  the  document 
by  Francis  Lieber,  issued  on  April  24,  1863,  by  the  United 
States  as  a  general  order  to  govern  the  conduct  of  its  armies 
in  the  field.  But  of  greater  importance  still  was  that  illustrious 
CONVENTION  FOR  THE  PEACEFUL  SETTLEMENT  OF  INTER- 
NATIONAL DIFFERENCES.  This  convention  established  the 
Hague  Permanent  Court  of  Arbitration  and  provided  a  code 
of  procedure,  based  upon  the  experience  of  nations,  well  adap- 
ted for  the  practical  application  and  extension  of  international 
arbitration. 

(Foreign  Relations  of  the  United  States,  1898,  1899;  Frederick 
W.  Holls:  The  Peace  Conference  at  The  Hague  [New  York,  1900]; 
Moore:  Digest  of  International  Law,  vol.  vn,  pp.  78-94,  338.) 


§8.  ARBITRATION,  ARBITRAL  PROCEDURE,  AND  THE 
PRESENTATION  OF  CLAIMS 


FROM  the  selected  cases  contained  in  the  pages  of  this  volume 
the  reader  will  notice  the  application  of  certain  of  the  rules  of 
procedure  governing  the  conduct  of  arbitration  and  the  submis- 
sion of  claims  for  examination  by  international  commissions. 
The  agreement  on  arbitration,  or  the  compromis,  is,  to  the  extent 
of  its  provisions,  recognized  as  the  governing  rule,  but  in  the  ab- 
sence of  specific  regulations  to  the  contrary,  certain  rules  of  pro- 
cedure which  have  been  tested  by  experience  are  generally  ap- 
plied by  the  tribunal.  Since  the  adoption  of  the  remarkable 
Hague  Convention  for  the  Peaceful  Settlement  of  International 
Differences  it  has  been  customary  to  include  in  the  compromis 
a  clause  referring  to  that  convention  the  regulation  of  all  ques- 
tions of  procedure  not  expressly  covered  by  agreements  between 
the  parties. 


THE  JOHN  H.  WILLIAMS  CLAIM  55 

In  the  succeeding  pages  will  be  found  instances  illustrative  of 
the  rules  of  arbitral  procedure  and  the  presentation  of  inter- 
national claims.  The  instances  which  relate  to  the  claims  of  in- 
dividuals might  be  classed,  for  the  most  part,  under  the  follow- 
ing heads:1 

(a)  The  determination  of  what  constitutes  an  interest  of  the 
demanding  government  such  as  to  justify,  in  international 
law,  its  interposition  in  favor  of  the  claimant. 

(6)  When  properly  presented,  the  tribunal  will  consider  the 
claim  on  its  merits  unless  it  be  barred  by: 

(1)  Agreement  of  the  governments  concerned. 

(2)  Previous  examination  so  as  to  be  excluded  by  the 
rule  of  res  judicata;  i.e.,  exception  of  a  previous  ju- 
dicial decision. 

(3)  By  limitation  and  prescription,  that  is  to  say,  the 
failure  on  the  part  of  the  demanding  Government 
through  a  long  period  of  years  to  employ  a  reasonable 
activity  in  keeping  the  claim  alive  by  urging  it  on 
the  defendant  Government.    As  a  consequence  of 
such  omission  the  claim  is  looked  upon  as  outlawed. 

(4)  Laches  on  the  part  of  the  claimant;  that  is  to  say, 
negligence  or  failure  to  use  a  fair  degree  of  diligence 
in  availing  himself  of  all  reasonable  means  of  secur- 
ing redress. 


THE  JOHN  H.  WILLIAMS  CLAIM   (1885) 

MR.  JOHN  LITTLE,  Chairman  of  the  United  States  and  Vene- 
zuelan Commission  under  the  Convention  of  December  5,  1885, 
made  the  following  award  in  the  claim  of  John  H.  Williams  v. 
Venezuela: 

"It  appears  from  the  papers  transmitted  us  that  in  1841 
John  H.  Williams,  a  merchant  in  New  York,  sold  and  delivered 

1  This  extremely  important  question  of  international  claims  has  been  carefully 
considered  in  an  interesting  volume  by  Edwin  M.  Borchard  (The  Diplomatic  Pro- 
tection of  Citizens  Abroad),  who,  in  his  former  position  of  Assistant  Solicitor  of  the 
Department  of  State,  was  able  to  study  at  first  hand  the  actual  practice  of  our 
government. 


56  ARBITRATION,  ARBITRAL  PROCEDURE  > 

in  that  city  to  an  agent  of  the  Venezuelan  Government  certain 
mirrors  with  mountings  for  the  Government  House  at  Caracas 
for  $2,489.11,  which  were  duly  forwarded  and  received. 

"On  the  24th  day  of  April,  1868,  Mr.  Williams  presented  the 
account  against  that  government  before  the  former  commission 
for  these  articles  as  of  the  date  of  November  9,  1841,  and  verified 
it  under  oath,  claiming  an  award,  including  interest  at  7  per  cent, 
of  $7,019.11.  The  account  had  before  been  sent  to  the  United 
States  legation  at  Caracas  for  collection,  but  how  long  before 
does  not  appear.  It  had  not,  previous  to  1868,  been  brought  to 
the  attention  of  the  Venezuelan  authorities  from  any  source,  so 
far  as  shown,  and  no  reason  or  explanation  is  given  for  delay  in 
presentation. 

"Venezuela  claims  the  goods  were  paid  for  at  the  time  of  pur- 
chase. On  the  issue  of  fact  thus  made  she  was  (1868)  and  is  placed 
at  a  disadvantage  by  the  long  lapse  of  time  as  to  the  matter  of 
personal  testimony,  some,  if  not  all,  her  witnesses  to  the  transac- 
tion having  before  then  died. 

"The  question  with  some  collateral  ones  is  thus  presented 
whether  time,  figuratively  stated,  testifies  in  these  adjudica- 
tions. This  case  could  perhaps  be  disposed  of  upon  other  grounds 
and  in  comparatively  few  words;  but  as  the  same  question  with 
like  resulting  ones  is  involved  in  other  cases  argued  and  sub- 
mitted, we  have  concluded  to  treat  it  with  some  fullness  and  dis- 
pose of  the  case  from  this  standpoint,  in  view  of  the  fact  that  the 
general  question  appears  to  be  a  somewhat  mooted  one  with  each 
government. 

"It  thus  appears  then  the  claim  was  not  brought  to  the  atten- 
tion of  the  Venezuelan  Government  until  twenty-six  years  after 
its  inception.  Its  ownership,  nature,  and  amount  were  such  as 
would  have  made  a  delay  in  presentation  to  the  debtor  for  a 
single  three  months  a  matter  of  surprise.  By  lapse  of  time  the 
means  of  defense  have  been  impaired,  and  there  is  total  want  of 
excuse  for  the  long  delay  by  claimant.  Under  such  circumstances 
what  does  the  law  require  at  our  hands? 

"It  is  a  well-settled  principle  in  common-law  jurisdictions,  and 
a  recognized  one  in  civil  law  countries,  that  obligations  are  to  be 
enforced  according  to  the  lex  locifori  which  here  is  the  treaty  and 


THE  JOHN  H.  WILLIAMS  CLAIM  57 

the  public  law.  Beyond  the  requirement  that  its  decisions  must 
be  according  to  justice,  the  treaty  furnishes  no  guide  to  the  com- 
mission respecting  the  operation  of  the  lapse  of  time  in  extin- 
guishing obligations.  It  is  left  to  the  direction  of  international 
law  on  the  subject.  Does  that  recognize  the  doctrine  of  such  ex- 
tinguishment as  between  states  in  controversies  like  these?  The 
question  has  been  argued  with  exceptional  force  and  ability  by 
counsel  for  the  respective  governments. 

"It  will,  perhaps,  not  be  amiss  to  group  extracts  from  the  de- 
liverances of  some  of  the  leading  authorities  upon  the  general 
doctrine  of  prescription  and  pertinent  principles.  We  present 
them  as  they  have  been  consulted,  and  without  reference  to  any 
special  order.  It  may  be  well  preliminarily  to  note  that,  while 
individual  interests  are  involved,  these  controversies,  as  else- 
where seen,  are  between  states  hi  some  sense,  and  stand  much  as 
if  so  originating;  and,  further,  that  while  the  texts  will  be  seen 
largely  to  relate  to  territorial  acquisitions  the  principles  announced 
comprehend  the  acquisition  and  loss  of  personal  property,  and 
pertain  to  other  rights  as  well." 

[The  learned  commissioner  then  proceeds  to  give  several  pages 
of  important  and  interesting  citations  from  the  authorities  rela- 
tive to  limitation  and  prescription.  As  a  result  of  his  considera- 
tion of  the  opinions  of  the  jurists  and  the  arguments  of  the  par- 
ties, he  concludes  as  follows:] 

"Upon  these  principles,  too  lengthily  discussed,  without  await- 
ing further  proof  called  for  in  defense  from  Venezuela,  we  dis- 
allow claim  No.  36.  It  was  withheld  too  long.  The  claimants' 
verification  of  the  old  urgent  account  of  1841,  twenty-six  years 
after  its  date,  without  cause  for  the  delay,  supposing  it  to  be  com- 
petent testimony,  is  not  sufficient  under  the  circumstances  of  the 
case  to  overcome  the  presumption  of  settlement." 

(Moore:  International  Arbitrations,  vol.  iv,  pp.  4181-99.) 


$8  MEASURE  OF  DAMAGES 

§9.   MEASURE  OF  DAMAGES 


RUSSIA  v.  TURKEY   (1912) 

Special  Arbitral  Tribunal  at  The  Hague  constituted  by  virtue  of  the  Arbitration 
Agreement  signed  at  Constantinople  between  Russia  and  Turkey,  July  22 /August 
4, 1910. 

THIS  was  a  case  involving  a  claim  for  interest  on  certain  de- 
ferred payments  of  an  indemnity,  which,  as  a  result  of  the  war  of 
1877,  Turkey  had  undertaken  to  pay  to  victorious  Russia.  Article 
5  of  the  treaty  of  peace  signed  at  Constantinople  January  27/ 
February  8,  1879,  stipulated  as  follows: 

"The  claims  of  Russian  subjects  and  institutions  in  Turkey 
for  indemnity  on  account  of  damages  suffered  during  the  war 
will  be  paid  as  soon  as  they  are  examined  by  the  Russian  Em- 
bassy at  Constantinople,  and  transmitted  to  the  Sublime  Porte. 
The  total  of  these  claims  shall  in  no  case  exceed  26,750,000  francs. 
Claims  may  be  presented  to  the  Sublime  Porte  beginning  one 
year  from  the  date  on  which  ratifications  are  exchanged,  and  no 
claims  will  be  admitted  which  are  presented  after  the  expiration 
of  two  years  from  that  date." 

For  the  purpose  of  examining  the  claims,  a  commission  was  ap- 
pointed by  the  Russian  Embassy,  and  the  Turkish  Government 
was  accorded  the  right  to  have  a  delegate  take  part  in  the  ex- 
amination. This  commission  fixed  the  total  losses  of  Russian 
subjects  at  6,186,543  francs.  Demand  was  duly  made  by  the  Rus- 
sian Government  for  the  payment  of  this  sum,  but  it  was  not  till 
December,  1884,  that  Turkey  paid  the  first  installment  on  ac- 
count, and  then  only  after  an  intimation  from  Russia  that  she 
would  be  obliged,  in  the  event  of  further  delay,  to  acknowledge 
for  the  indemnitaires  [the  recipients  of  indemnity]  "their  right  to 
claim,  in  addition  to  the  principal,  interest  proportional  to  the 
delay  in  the  settlement  of  their  claims." 

As  time  went  on,  Russia  repeated  her  demands,  and  Turkey 
her  excuses,  until,  in  1891,  Russia  requested  the  Sublime  Porte 
"to  have  immediate  orders  issued  by  the  proper  person  so  that 
the  sum  due  may  be  paid  without  delay,  as  well  as  the  legal  in- 


RUSSIA  v.  TURKEY  59 

terest  in  regard  to  which  the  embassy  had  the  honor  of  notifying 
the  Sublime  Porte  by  its  note  of  February  15/27,  1887." 

This  demand  for  interest  was  made  in  due  form,  but  in  subse- 
quent negotiations  with  the  Porte,  Russia  accepted  various  pay- 
ments without  further  stipulation  for  the  payment  of  interest, 
never  challenging  Turkish  statements  of  balance  due.  In  July, 
1902,  however,  when  there  was  still  outstanding  the  sum  of  1,539 
Turkish  pounds,  the  Russian  Embassy  forwarded  a  petition  from 
the  indemnitaires  claiming  compound  interest  at  1 2  per  cent  from 
January  i,  1881,  to  March  15,  1887  (when  the  legal  rate  of  in- 
terest in  Turkey  was  lowered),  and  9  per  cent  after  the  latter  date. 
Thus  from  an  original  indemnity  of  something  over  six  million 
francs,  the  moratory  interest  claimed  amounted,  in  1902,  to 
twenty  million  francs.  In  the  note  accompanying  this  petition, 
Russia  assumed  that  Turkey  would  admit  the  justice  of  the  claims 
in  principle,  but  might  possibly  object  to  the  amount  claimed.  In 
such  case,  a  joint  commission  was  suggested  to  determine  the 
sum  due.  Turkey  made  emphatic  objection  to  any  such  claim, 
but  expressed  its  willingness  to  submit  the  matter  to  arbitration 
at  The  Hague.  In  1908,  after  four  years'  delay,  Russia  accepted 
this  suggestion  and  an  agreement  to  arbitrate  was  signed  at  Con- 
stantinople July  22/August  4,  1910. 

Two  questions  were  submitted  for  decision: 

"i.  Whether  or  not  the  Imperial  Ottoman  Government  must 
pay  the  Russian  claimants  interest-damages  by  reason  of 
the  dates  on  which  the  said  government  made  payment  of 
the  indemnities  determined  hi  pursuance  of  article  5  of  the 
Treaty  of  January  27/February  8,  1879,  as  well  as  of  the 
protocol  of  the  same  date? 

"2.  In  case  the  first  question  is  decided  in  the  affirmative,  what 
would  be  the  amount  of  these  interest-damages?  " 

The  tribunal  was  composed  of  five  members:  Herante  Abro 
Bey  and  Ahmed  RSchid  Bey,  of  Turkey,  Baron  von  Taube  and 
M.  Mandelstam,  of  Russia,  and  M.  Lardy,  the  Swiss  Minister 
at  Paris,  who  was  chosen  umpire. 

The  first  session  was  held  on  February  15,  1911,  when  cases 
and  counter-cases  were  exchanged.  Thereupon  adjournment  was 


60  MEASURE  OF  DAMAGES 

made  to  October  28,  1912,  at  which  date  the  tribunal  reassembled 
to  hear  the  oral  arguments.  The  award  was  rendered  November 
n,  1912. 

The  demand  of  Russia  was  based  upon  the  principle  that  states 
are  responsible  for  the  non-payment  of  their  pecuniary  obliga- 
tions. This  implies  the  obligation  to  pay  interest-damages  (dom- 
'  mages-interets)  "and  especially  interest  on  sums  unduly  with- 
held." To  admit  otherwise  would  be  contrary  to  international 
law,  for  then  the  debtor  state  would  pay  at  its  convenience,  while 
the  creditor  state  would  be  under  temptation  to  resort  to  violence 
to  secure  its  rights.  In  such  case  nothing  could  be  expected  from 
a  "pretended  international  law  incapable  of  compelling  the  prom- 
isor to  keep  his  word."  Russia  was  careful  to  point  out  that  the 
claim  was  not  for  "  conventional  interest  .  .  .  arising  from  a  par- 
ticular stipulation;"  the  obligation  that  lay  upon  Turkey  was  to 
pay  moratory  interest,  and  it  arose  "from  the  delay  in  the  per- 
formance of  the  act,  that  is  to  say,  the  partial  non-fulfillment  of 
the  stipulation  of  the  treaty  of  peace;  this  obligation  arose  in- 
deed, it  is  true,  from  the  treaty  of  1879,  but  it  proceeded  ex  post 
facto  from  a  new  and  accidental  cause,  namely,  the  failure  of  the 
Sublime  Porte  to  carry  out  its  contract  as  it  had  pledged  itself  to 
do."  Several  arbitral  awards  supported  this  principle  of  respon- 
sibility of  states  as  applied  to  money  debts,  especially  in  the 
obligation  to  pay  moratory  interest;  among  them,  those  of  Mexico- 
Venezuela  in  1903,  Colombia-Italy  in  1904,  and  the  United  States- 
Venezuela  in  1885.  The  indemnity  was  not  a  donation  on  the  part 
of  Turkey  for  the  benefit  of  the  Russian  victims  of  the  war,  and 
hence  Turkey  could  not  plead  the  exemption  from  moratory  in- 
terest accorded  by  some  codes  to  gifts.  Turkey  had  received 
valuable  consideration  for  the  indemnity  assumed,  namely,  cessa- 
tion of  hostilities,  and  the  indemnitaires  had  always  been  con- 
sidered, in  the  negotiations  between  the  two  powers,  "as  claim- 
ants not  as  donors."  Turkey  should  have  met  these  obligations 
promptly,  for  it  was  able  to  raise  loans  on  favorable  terms  and 
during  the  period  under  consideration  had  paid  off  350,000,0x00 
francs  of  its  public  debt. 

The  general  principle  of  the  responsibility  of  states  for  the  non- 
fulfillment of  obligations  was  not  denied  by  Turkey,  but  in  inter- 


RUSSIA  v.  TURKEY  6l 

national  law,  the  Turkish  argument  maintained,  there  was  no 
such  thing  as  moratory  interest.  To  create  such  an  obligation 
there  must  be  express  stipulation.  A  state  was  not  like  other 
debtors;  "the  position  sui  generis  [exceptional]  of  the  state  as  a 
public  power  must  be  taken  into  account."  Fiscus  ex  suis  con- 
tractibus  usuras  non  dat.  (The  state  treasury  allows  no  interest  on 
its  obligations.)  If  compelled  to  assume  an  obligation  not  stipu- 
lated for,  a  state  would  be  made  a  "debtor  to  a  greater  extent 
than  it  would  have  desired."  This  might  endanger  the  political 
existence  of  the  state,  injure  its  vital  interests,  confuse  its  finances, 
and  prevent  it  from  defending  itself  against  domestic  or  foreign 
peril.  The  Roman  law  theory  of  responsibilities  was  analyzed 
and  emphasis  laid  upon  the  distinction  between  compensatory 
interest  and  moratory  interest;  the  former  being  interest  "which 
is  sometimes  added  to  the  money  valuation  of  damages,  to  fix  the 
total  amount  of  an  indemnity,"  the  latter,  "interest  legally  al- 
lowed in  case  of  delay  in  the  payment  of  money  debts."  Turkey 
admitted  the  responsibility  of  states  for  the  payment  of  com- 
pensatory interest-damages,  and  on  this  basis  explained  the 
awards  cited  by  Russia  in  support  of  her  case. 

In  anticipation  of  any  responsibility  attaching  to  it  for  the  pay- 
ment of  interest,  Turkey  pleaded  various  exceptions:  — 

1.  Force  majeure  [necessity]  —  that  Turkey  for  many  years  had 
been  involved  in  financial  and  other  difficulties  which  made 
it  impossible  to  meet  its  obligations  promptly. 

2.  The  indemnity  was  of  the  nature  of  a  gift,  and  hence  ex- 
empt from  the  imposition  of  interest. 

3.  Three  of  the  claimants  had  asked  for  interest  before  the  com- 
mission at  the  Russian  Embassy  and  had  had  their  request 
refused.    Hence,  the  principle  of  res  judicata  operated  to  set 
aside  the  present  claim. 

4.  Russia  had  failed  to  follow  up  its  demand  for  interest,  and 
thus  for  eleven  or  twelve  years  "tacitly  and  indeed  ex- 
pressly" had  renounced  all  benefit  of  suit.  No  reservations 
of  interest  had  been  made  in  the  receipts  given  by  the  Rus- 
sian Embassy,  and  neither  party  had  mentioned  interest  for 
a  period  of  ten  years. 


62  MEASURE  OF  DAMAGES 

In  its  award  the  tribunal  first  rejected  a  preliminary  request 
made  by  Turkey  that  the  claim  be  set  aside  as  properly  the  sub- 
ject of  private,  not  of  governmental,  action.  The  claim,  the  tri- 
bunal pointed  out,  originated  hi  a  war,  "an  international  fact  in 
the  first  degree."  The  damages  to  be  paid  to  Russian  subjects 
were  included  in  the  indemnities  stipulated  for  in  an  international 
treaty,  and  were  to  be  paid  to  Russia  as  sole  creditor,  irrespective 
of  the  manner  of  distribution  among  the  individual  claimants.  In 
1885,  Turkey  had,  in  consequence  of  protest  by  Russia,  forborne 
to  impose  upon  receipts,  given  by  the  Russian  Embassy  for  pay- 
ments on  account,  the  stamp- tax  required  by  Ottoman  law  from 
individuals,  and  had  always  accepted  receipts  from  the  embassy 
as  proof  of  discharge  of  its  obligations.  For  these  reasons,  there- 
fore, the  tribunal  considered  that  it  was  necessary  to  proceed  to 
an  examination  of  the  main  question  —  the  claim  for  interest  be- 
cause of  delay  in  payment. 

Addressing  itself  to  the  theories  of  responsibility,  the  tribunal 
brushed  aside  the  elaborate  distinctions  which  Turkey  had  sought 
to  make.  All  interest-damages  were  by  way  of  reparation,  and 
hence  compensatory.  All  culpability  could  be  reduced,  in  the  last 
analysis,  to  a  money  debt.  The  tribunal  was,  therefore,  of  the 
opinion  "that  the  general  principle  of  the  responsibility  of  states 
implies  a  special  responsibility  in  the  matter  of  delay  in  the 
payment  of  a  money  debt,  unless  the  existence  of  a  contrary  in- 
ternational custom  is  proven." 

But  the  precedents  all  supported  the  contention  of  Russia.  To 
prove  its  point,  Turkey  would  have  to  cite  instances  where  mora- 
tory interest,  as  Turkey  understood  it,  was  refused  on  the  ground 
of  its  being  moratory  interest,  and  this,  in  the  opinion  of  the 
tribunal,  had  not  been  done.  In  the  case  of  the  Mosquitia  award, 
relied  on  by  Turkey,  the  arbitrator  had  not  refused  moratory  in- 
terest, as  such,  but  had  held  that  the  principal  was  in  the  nature 
of  a  gift. 

As  for  the  argument  advanced  by  Turkey  that  a  state  could 
not  become  a  debtor  to  a  greater  extent  than  it  wished,  the  tribunal 
held  that  responsibility  of  states  could  be  denied  only  in  its  en- 
tirety. It  was  not  possible  to  declare  a  state  freed  from  responsi- 
bility in  money  debts  without  declaring  it  irresponsible  for  its 


RUSSIA  v.  TURKEY  63 

other  obligations.  A  state  could  be  condemned  to  compensatory 
damages  for  an  act  of  violence  without  voluntary  stipulation, 
and  this  might  have  a  serious  effect  upon  its  existence.  Hence,  it 
was  impossible  to  admit  any  exception  to  the  responsibility  of  a 
public  power  in  the  matter  of  money  debts. 

This  responsibility,  following  the  analogy  of  European  private 
legislation,  implied  the  obligation  "to  pay  at  least  interest  for  de- 
layed payments  as  legal  indemnity  when  it  is  a  question  of  the 
non-fulfillment  of  an  obligation  consisting  in  the  payment  of  a 
sum  of  money  fixed  by  convention,  clear  and  exigible."  But  it  is 
equitable  in  such  case  that  there  be  a  demand  for  interest  — 
simple  interest  —  made  in  due  form  of  law,  and  a  debtor  state  is 
entitled  in  the  matter  to  have  a  privilege  accorded  to  private 
debtors. 

Such  demand  the  tribunal  found  to  have  been  made  by  Russia 
in  the  note  of  January  12,  1891.  Hence,  Turkey  was  to  be  held 
responsible  for  interest  on  deferred  payments  from  that  date,  un- 
less the  exceptions  pleaded  were  well  taken. 

Of  the  exceptions,  three  were  held  by  the  tribunal  to  be  inad- 
missible: force  majeure,  though  it  had  been  present  in  Turkish 
affairs,  was  not  of  sufficient  magnitude  to  prevent  Turkey  from 
paying  the  comparatively  small  sum  of  six  million  francs;  the  in- 
demnity was  not  a  gift,  but  had  been  stipulated  for  value  received; 
res  judicata  could  not  be  established  because  the  claim  for  interest 
arose,  "a  posteriori  [afterwards],  by  reason  of  the  dates  on  which 
the  indemnities  were  paid."  There  remained  the  fourth  excep- 
tion —  that  Russia  had  lost  all  benefit  arising  from  her  demand 
of  January  12,  1891,  because,  in  subsequent  negotiations,  she 
had  omitted  to  make  express  reservation  for  payment  of  in- 
terest. This  was  considered  by  the  tribunal  as  well  taken.  "In 
private  law,"  according  to  the  award,  "the  effects  of  demand 
for  payment  are  eliminated  when  the  creditor,  after  having 
made  legal  demand  upon  the  debtor,  grants  one  or  more  exten- 
sions for  the  payments  of  the  principal  obligation,  without  re- 
serving the  rights  acquired  by  the  legal  demand."  As,  in  this 
capacity  of  creditor,  there  is  an  analogy  between  a  state  and  an 
individual,  Russia  was  considered  by  the  tribunal  to  have  for- 
feited her  right  to  demand  interest  and  hence  the  decision: 


64  REVISION  OF  ARBITRAL  AWARDS 

"That  in  principle  the  Imperial  Ottoman  Government  was 
liable  to  moratory  indemnities  to  the  Imperial  Russian  Govern- 
ment from  December  31,  iSgo/January  12,  1891,  the  date  of  the 
receipt  of  the  explicit  and  regular  demand  for  payment; 

"But  that,  in  fact,  the  benefit  to  the  Imperial  Russian  Govern- 
ment of  this  legal  demand  having  ceased  as  a  result  of  the  subse- 
quent relinquishment  by  its  embassy  at  Constantinople,  the 
Imperial  Ottoman  Government  is  not  held  liable  to  pay  interest- 
damages  by  reason  of  the  dates  on  which  the  payment  of  the 
indemnities  was  made." 

(American  Journal  of  International  Law,  vol.  vn,  pp.  178-201; 
G.  G.  Wilson,  The  Hague  Arbitration  Cases;  Revue  de  Droit  Inter- 
national [1913],  vol.  45,  pp.  351-71.) 


§  10.  REVISION   OF  ARBITRAL  AWARDS 
(a)  Res  judicata 


THE  PIOUS  FUND  OF  THE  CALIFORNIAS 

Permanent  Court  of  Arbitration  at  The  Hague,  1902 

THIS  case  has  the  distinction  of  having  been  the  first  to  come 
before  the  Permanent  Court  of  Arbitration  under  the  Hague 
Convention  of  1899.  The  matter  for  adjudication  was  the  ulti- 
mate disposal  of  the  income  from  a  religious  trust  fund  controlled 
by  Mexico,  but  claimed  in  part  by  the  United  States  for  the  benefit 
of  the  Archbishop  of  San  Francisco  and  the  Bishop  of  Monterey, 
prelates  of  the  Roman  Catholic  Church.  The  early  history  of  the 
fund  was  as  follows: 

Toward  the  latter  part  of  the  seventeenth  century,  the  Jesuits 
undertook  the  conversion  of  the  Indians  of  the  Californias,  and 
to  that  end  were  assisted  by  the  liberal  gifts  of  private  donors,  so 
that  in  the  course  of  a  century  a  large  amount  of  money  became 
available  for  this  religious  enterprise,  under  the  name  of  the  Pious 
Fund  of  the  Californias.  After  the  suppression  of  the  Jesuit  Order, 
the  control  of  this  fund  vested  in  the  King  of  Spain,  but  on  the 
secession  of  Mexico  from  the  Spanish  dominion,  he  was  succeeded 


THE  PIOUS  FUND  OF  THE  CALIFORNIAS  65 

In  this  capacity  of  trustee  by  the  Mexican  Government,  which  in 
1836  created  the  bishopric  of  the  Calif ornias  and  assigned  to  its 
bishop  the  control  of  the  fund.  In  1842,  however,  this  arrange- 
ment was  rescinded  and  governmental  control  resumed  "for  the 
purpose  of  carrying  out  the  intention  of  the  donors  in  the  civiliza- 
tion and  conversion  of  the  savages."  The  properties  were  incor- 
porated into  the  national  treasury  and  sold,  but  an  indebtedness 
of  six  per  cent  per  annum  was  acknowledged  as  a  lien  on  the 
treasury,  which  sum  was  to  be  duly  applied  for  the  original  re- 
ligious purposes.  But  when  Upper  California  passed  to  the  United 
States  in  1848,  no  further  payments  were  made  on  its  account. 
Accordingly,  when  under  the  Treaty  of  1868  a  mixed  commission 
was  instituted  by  the  United  States  and  Mexico  to  pass  upon  all 
outstanding  claims  that  the  citizens  of  either  state  had  against 
the  government  of  the  other,  the  Archbishop  of  San  Francisco 
and  the  Bishop  of  Monterey  presented  a  claim  for  a  share  of  the 
income  from  the  Pious  Fund  —  that  share,  namely,  which  prop- 
erly should  be  applied  to  religious  purposes  in  Upper  California. 
The  two  commissioners  being  unable  to  agree,  the  claim  was  re- 
ferred to  the  umpire,  Sir  Edward  Thornton,  who  in  1875  decided 
that  Mexico  should  pay  to  the  claimants  $904,070.99  in  Mexican 
gold,  being  six  per  cent  upon  one  half  of  the  capitalized  value  of 
the  Pious  Fund  for  twenty-one  years  from  1848  to  1869. 

Due  payment  of  this  award  was  made  by  Mexico  who  main- 
tained that  thereby  the  claim  was  extinguished  in  its  entirety. 
The  United  States,  on  the  other  hand,  contended  that  an  install- 
ment of  interest  was  due  annually  from  1869  and  made  repeated 
attempts  to  get  a  further  settlement.  At  last  by  a  protocol  be- 
tween the  two  governments  in  1902,  it  was  agreed  to  refer  the 
claim  to  a  special  tribunal  of  four  arbitrators  and  an  umpire, 
selected  in  accordance  with  the  provisions  of  the  Hague  Conven- 
tion. The  tribunal  was  to  determine: 

"i.  If  said  claim,  as  a  consequence  of  the  former  decision,  is 
within  the  governing  principle  of  res  judicata;  and 

"  2.  If  not,  whether  the  same  be  just; 

"And  to  render  such  judgment  and  award  as  may  be  meet  and 
proper  under  all  the  circumstances  of  the  case." 

As  members  of  the  tribunal,  the  United  States  nominated 


66  REVISION  OF  ARBITRAL  AWARDS 

Professor  Martens,  of  Russia,  and  Sir  Edward  Fry,  of  England; 
Mexico  nominated  Mr.  T.  M.  C.  Asser  and  Jonkheer  A.  F.  de 
Savorin  Lohman,  of  Holland.  These  selected,  as  fifth  member, 
Professor  Matzen,  of  Copenhagen,  who  ex  officio  presided.  All 
five  arbitrators  were  members  of  the  Permanent  Court  of  Ar- 
bitration. 

Two  lines  of  argument  were  developed  in  the  conduct  of  the 
case:  (i)  as  to  the  merits  of  the  subject-matter  in  dispute;  (2)  as 
to  the  doctrine  of  res  judicata  involved.  It  is  the  latter,  especially 
as  applied  to  the  awards  of  arbitral  commissions,  that  constitutes 
the  chief  interest  for  international  law. 

1.  As  to  the  merits  of  the  case,  Mexico  urged  lack  of  title  of  the 
Calif ornian  bishops  as  trustees  of  the  fund;  absence  of  legal  claim 
on  the  part  of  the  Roman  Catholic  Church  in  Upper  California 
to  any  interest  in  it;  and  further,  the  fulfillment  of  the  object  of 
the  fund,  as  far  as  Upper  California  was  concerned,  viz.,  the  con- 
version of  the  Indians.   In  reply,  the  United  States  cited  Mexi- 
can legislation  as  recognizing  the  bishops  as  beneficiaries  of  the 
fund,  and  contended  that,  though  Mexico  might  "  sequester  the 
property  of  its  own  religious  corporations,  no  right  could  be  ex- 
ercised as  against  such  corporations  or  bodies,  citizens  of  the 
United  States."     The  Roman  Catholic  Church,  too,  even  if  no 
perfect  right  existed  in  its  favor,  should  be  considered  the  equit- 
able recipient  of  that  part  of  the  fund  applicable  to  Upper  Califor- 
nia.  As  to  the  conversion  of  the  Indians,  that  was  but  one  of  the 
purposes  of  the  foundation;  the  primary  purpose  was  to  support 
the  Roman  Catholic  Church  and  its  missions,  and  in  strict  equity, 
so  far  from  the  fund  being  applied  on  the  basis  of  Indian  popu- 
lation in  Upper  and  Lower  California,  it  should  be  apportioned 
in  proportion  to  the  total  population  of  the  two  countries. 

2.  The  main  controversy  was  over  the  doctrine  of  res  judicata 
as  applicable  to  the  findings  of  arbitral  commissions.    Was  the 
award  of  Sir  Edward  Thornton  as  to  "the  matters  directly  and 
impliedly  in  issue  before  the  mixed  commission"  absolutely  con- 
clusive, or  was  it  not?  The  United  States  maintained  that  it  had 
the  force  of  res  judicata  in  all  its  parts,  reasons  (motifs)  as  well  as 
conclusions,  and  that  consequently  Mexico  was  under  obliga- 
tion to  pay  to  the  claimants  an  annual  installment  of  interest  upon 


THE  PIOUS  FUND  OF  THE  CALIFORNIAS  67 

one-half  the  fund  in  perpetuity;  whereas  Mexico  maintained  that 
it  had  bound  her  to  pay  only  certain  specified  installments  of  in- 
terest —  from  1848  to  1869  —  and  nothing  else. 

Mexico  argued  that  a  judgment  had  the  force  of  res  judicata 
only  in  its  conclusions;  "that  is,  to  that  part  which  pronounces 
acquittal  or  condemnation,  quod  jussit  vetuitve"  The  reasons 
(motifs)  for  the  decision  did  not  have  similar  force.  "The  greater 
number  of  authorities  [quoting  Savigny]  deny  absolutely  to  the 
reasons  [motifs]  the  force  of  res  judicata,  not  excepting  the  case  where 
the  reasons  are  a  part  of  the  judgment"  If  this  was  true  of  the 
judgments  of  the  permanent  judiciary  of  a  state,  still  more  did 
it  hold  in  the  case  of  an  award  "rendered  by  arbitrators  who  have 
no  real  jurisdiction  nor  other  powers  than  those  granted  them  in 
the  arbitration  agreement."  On  this  latter  point  Mexico  main- 
tained that  the  Commission  of  1868  had  gone  beyond  its  powers 
in  considering  claims  which  had  been  extinguished  by  the  treaty 
of  Guadalupe  Hidalgo  in  1848.  It  had  no  authority  to  pass  upon 
its  own  jurisdiction,  and  hence  the  decision  of  the  umpire  had 
been  rendered  on  a  matter  not  contemplated  for  submission.  Even 
if  Mexico,  by  paying  the  award  of  1876,  had  to  that  extent  ac- 
quiesced in  the  decision,  the  objections  to  the  reasons  given  still 
remained  valid.  All  that  Mexico  had  to  do  was  to  pay  twenty- 
one  installments  of  interest  in  conformity  with  an  award;  no 
judgment  had  been  rendered  concerning  an  existing  capital  or 
further  installments  due,  nor  was  Mexico  bound  to  admit  the 
validity  of  any  claims  to  such. 

The  United  States,  on  the  contrary,  argued  that  there  were  two 
classes  of  reasons  (motifs),  the  subjective  —  depending  upon  the 
"personal  equation"  of  the  judge  —  and  the  objective,  or  neces- 
sary bases  for  the  decision;  and  that  "if  the  matters  necessary 
to  be  found  to  make  up  a  judgment  had  been  debated  between 
the  parties,  the  judgment  of  necessity  in  these  respects  had  the 
force  of  res  judicata."  This  had  been  done  in  the  case  of  Sir  Ed- 
ward Thornton's  award,  for  before  any  decision  could  have  been 
arrived  at,  "it  was  necessary  that  the  court  should  have  found 
the  existence  of  a  fund,  the  possession  of  it  by  Mexico,  her  obliga- 
tion to  pay  interest  thereon  to  the  Catholic  bishops,  the  yearly 
amount  due  by  her  on  account  of  such  obligation,  and  the  number 


68  REVISION  OF  ARBITRAL  AWARDS 

of  years  for  which  she  was  in  default"  —  all  of  which,  therefore, 
were  elements  contributing  to  the  decision  and  hence  permanent 
in  their  binding  effect.  As  to  the  Treaty  of  1848,  it  was  not  in- 
tended to  cancel  claims  against  Mexico  owned  by  those  who, 
previous  to  the  treaty,  had  been  Mexican,  but  by  the  treaty  had 
become  American,  citizens,  as  was  the  case  with  the  Californian 
bishops.  When  the  Commission  of  1868  was  instituted,  the  power 
to  determine  jurisdiction  was  not  reserved  for  any  appellate 
authority;  such  power  must  inhere  somewhere;  hence  it  must 
have  inhered  in  the  commission  itself.  Such  a  power  was  strictly 
in  accordance  with  precedent.  "Instances  might,  in  fact,  be  multi- 
plied indefinitely  of  cases  where  arbitral  commissions  have  ac- 
cepted or  rejected  jurisdiction,  but  we  fail  to  find  a  precedent  for 
the  denial  of  the  authority  of  arbitrators  to  pass  upon  the  inter- 
pretation of  the  instrument  creating  them."  Both  in  the  common 
and  the  civil  law,  the  doctrine  of  res  judicaia  applied  to  arbitral 
decisions  and  it  was  similarly  applied  to  the  findings  of  interna- 
tional tribunals.  Such  decisions  may  be  set  aside  because  of 
fraud,  excess  of  power  or  essential  error,  but  such  error  must  in- 
volve a  subversion  of  "the  natural  law  of  nations,"  not  merely  a 
mistake  in  judgment.  No  such  error,  the  United  States  contended, 
was  apparent  hi  the  award  of  1876,  and  "although  Mexico  sought 
to  minimize  its  future  effect,  she  did  not  nevertheless  deny  its 
absolute  sanctity." 

The  tribunal,  in  its  award,  found  substantially  for  the  United 
States,  except  on  the  minor  point  of  mode  of  payment,  the  tribunal 
holding  that  the  sentence  of  Sir  Edward  Thornton,  in  so  far  as  it 
enjoined  payment  in  gold,  applied  only  to  the  twenty-one  an- 
nuities from  1848  to  1869,  "because  question  of  the  mode  of  pay- 
ment does  not  relate  to  the  basis  of  the  right  in  litigation,  but 
only  to  the  execution  of  the  sentence." 

The  decisory  part  of  the  award  was  as  follows: 

"i.  The  said  claim  of  the  United  States  of  America  for  the 
benefit  of  the  Archbishop  of  San  Francisco  and  of  the  Bishop  of 
Monterey  is  governed  by  the  principle  of  res  judicata  by  virtue 
of  the  arbitral  sentence  of  Sir  Edward  Thornton,  of  November  n, 
1875;  amended  by  him  October  24,  1876. 

"2.  Conformably  to  that  arbitral  sentence,  the  Government 


THE  CLAIMS  AGAINST  VENEZUELA  69 

of  the  Republic  of  the  United  Mexican  States  must  pay  to  the 
Government  of  the  United  States  of  America  the  sum  of  $1,420,- 
682.67  Mexican,  in  money  having  legal  currency  in  Mexico, 
within  the  period  fixed  by  article  10  of  the  protocol  of  Washington 
of  May  22,  1902. 

"This  sum  of  $1,420,682.67  will  totally  extinguish  the  annui- 
ties accrued  and  not  paid  by  the  Government  of  the  Mexican  Re- 
public —  that  is  to  say,  the  annuity  of  $43,050.99  Mexican  from 
February  2,  1869  to  February  2,  1902. 

"3.  The  Government  of  the  Republic  of  the  United  Mexican 
States  shall  pay  to  the  Government  of  the  United  States  of 
America  on  February  2,  1903,  and  each  following  year  on  the 
same  date  of  February  2,  perpetually,  the  annuity  of  $43,050.99 
Mexican,  hi  money  having  legal  currency  in  Mexico." 

(Pious  Fund  of  the  Calif ornias,  Senate  Document,  No.  28,  57th 
Cong.,  2d  Sess.;  G.  G.  Wilson,  The  Hague  Arbitration  Cases.) 


(b)  Corruption  of  the  tribunal 


THE  CLAIMS  AGAINST  VENEZUELA   (1866-90) 

APTER  a  protracted  and  difficult  negotiation,  Venezuela  and 
the  United  States  signed,  April  25,  1866,  a  convention  referring 
the  examination  of  the  claims  against  Venezuela  to  a  mixed  com- 
mission for  settlement.  After  the  commission  had  been  organ- 
ized and  had  terminated  its  labors  August  3,  1868,  having  clis- 
posed  of  all  the  claims  submitted  to  it,  the  Venezuelan  Govern- 
ment, February  12,  1869,  presented  to  the  Department  of  State 
at  Washington  a  protest  against  the  awards  of  the  commission, 
alleging  irregularity  in  the  appointment  of  the  umpire,  and  fraud 
in  the  proceedings  and  findings.  This  protest  was  not  favorably 
received,  and  it  was  proposed  in  Congress  to  direct  the  Presi- 
dent to  demand  of  Venezuela  the  immediate  payment  of  the 
awards,  and,  in  case  of  her  neglect  or  refusal  to  comply,  to  use 
such  force  as  might  in  his  judgment  be  necessary  to  secure  the 
faithful  performance  of  the  terms  of  the  convention. 


70  REVISION  OF  ARBITRAL  AWARDS 

Congress  did  in  1873  Pass  a  kill  recognizing  the  "final  and  con- 
clusive" character  of  the  claims  adjudicated.  Venezuela  seems  to 
have  acknowledged  her  obligation,  but  domestic  disturbances  in- 
terfered with  the  regularity  of  her  payments.  In  the  meantime 
the  attacks  upon  the  commission  continued. 

In  the  first  session  of  the  Forty-fourth  Congress  a  full  investiga- 
tion of  the  charges  against  the  commission  was  at  length  held.  It 
resulted  in  an  elaborate  report  by  Mr.  Springer,  from  the  Com- 
mittee on  Foreign  Affairs,  and  in  the  adoption  by  the  House,  unani- 
mously, of  a  resolution  directing  the  Secretary  of  State  to  suspend 
the  distribution  of  the  sums  paid  by  Venezuela  on  account  of  the 
awards.  Subsequently,  additional  testimony  was  taken  and  printed 
by  order  of  the  House;  important  correspondence  was  communi- 
cated by  the  President  to  the  same  body,  and  a  report  was  made 
by  Mr.  Hamilton,  from  the  Committee  on  Foreign  Affairs,  rec- 
ommending the  creation  of  a  new  commission. 

The  charges  against  the  commission,  as  developed  in  the  in- 
vestigation, were  to  the  effect  that  before  the  meeting  of  the  board 
a  conspiracy  was  entered  into  by  Talmage,  the  United  States 
Commissioner,  Thomas  N.  Stilwell,  the  United  States  Minister  at 
Caracas,  and  William  P.  Murray,  StilwelTs  brother-in-law  and 
the  moving  spirit  in  the  matter,  to  defraud  claimants  by  exact- 
ing of  them  a  large  proportion  of  their  awards  in  the  form  of  at- 
torneys' fees;  that,  in  pursuance  of  this  agreement,  Murray  ob- 
tained contracts  with  claimants  to  represent  them  before  the 
commission  in  consideration  of  from  40  to  60  per  cent  of  whatever 
might  be  awarded;  that  the  installation  of  Machado  as  umpire 
was  brought  about  in  an  irregular  manner;  that  on  the  claims 
which  Murray  represented  awards  were  made  to  the  amount  of 
more  than  $850,000,  while  many  meritorious  claims  were  rejected; 
that  the  certificates  of  award  were  made  in  small  amounts  and 
payable  to  bearer,  so  as  to  pass  without  indorsement;  that  Tal- 
mage, as  the  joint  attorney  of  Murray  and  the  claimants,  withdrew 
the  certificates  from  the  commission;  and  that  after  the  claimants 
had  received  the  certificates  representing  their  share  of  an  award, 
the  rest,  representing  the  attorney's  share,  was  divided  between 
Murray,  Stilwell,  Talmage,  and  Machado.  Whether  Villafane 
[the  Venezuelan  Commissioner]  was  in  any  measure  a  conscious 


THE  CLAIMS  AGAINST  VENEZUELA  71 

party  to  the  transaction  was  considered  doubtful.  The  charge  of 
irregularity  in  regard  to  the  selection  of  the  umpire  was  that 
Baron  Stoeckl,  the  Russian  Minister  at  Washington,  having  ap- 
pointed as  umpire  "Mr.  Machado,"  notice  to  that  effect  was  sent 
by  the  Department  of  State  to  the  legation  at  Caracas;  that  Stil- 
well,  as  United  States  Minister,  though  there  was  a  Juan  N. 
Machado,  Sr.,  and  a  Juan  N.  Machado,  Jr.,  notified  the  latter 
that  he  had  been  appointed;  that  the  suggestion  of  the  name  of 
Machado  originally  proceeded  from  the  conspirators,  and  that  the 
installation  of  Juan  N.  Machado,  Jr.,  as  umpire,  was  the  result  of 
their  contrivance. 

In  spite  of  the  findings  of  the  committees  of  Congress  in  regard 
to  the  proceedings  of  the  commission,  no  definite  step  toward  a 
revision  of  the  awards  was  taken  till  1883. 

In  consequence  of  a  special  message  sent  to  Congress  by  the 
President,  May,  1882,  the  Committee  on  Foreign  Affairs  made  a 
report  rejecting  the  proposal  of  the  Secretary  of  State  to  refer 
certain  of  the  claims  to  the  Court  of  Claims  for  investigation  and 
declaring  that  there  had  been  "no  valid  commission  as  called 
for  by  the  treaty"  and  that  "the  alleged  commission  was  a  con- 
spiracy; its  proceedings  were  tainted  with  fraud;"  and  that  jus- 
tice to  Venezuela  demanded  that  "these  proceedings  should  be 
set  aside  speedily  and  without  circuitous  action." 

In  accordance  with  these  views  the  committee  reported  a  joint 
resolution  which,  after  adoption  by  both  Houses  unanimously, 
was  approved  by  the  President  March  3,  1883. 

This  resolution  was  simple,  direct,  and  logical.  After  starting 
out  with  the  declaration  that  the  evidence  tended  to  show  that 
the  charges  against  the  commission,  "impeaching  the  validity 
and  integrity  of  its  proceedings,"  were  "not  without  foundation," 
the  resolution  proposed : 

"Therefore  - 

"Resolved  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  Presi- 
dent be,  and  he  hereby  is,  requested  to  open  diplomatic  corre- 
spondence with  the  Government  of  the  United  States  of  Vene- 
zuela, with  a  view  to  the  revival  of  the  general  stipulations  of  the 
treaty  of  April  25,  1866,  with  said  government,  and  the  appoint- 


72  REVISION  OF  ARBITRAL  AWARDS 

ment  thereunder  of  a  new  commission  to  sit  in  the  city  of  Wash- 
ington, which  commission  shall  be  authorized  to  consider  all  the 
evidence  presented  before  the  former  commission  in  respect  to 
claims  brought  before  it,  together  with  such  other  and  further 
evidence  as  the  claimants  may  offer;  and  from  the  awards  that 
may  be  made  to  claimants,  any  moneys  heretofore  paid  by  the 
Department  of  State  upon  certificates  issued  to  them,  respectively, 
upon  awards  made  by  the  former  commission,  shall  be  deducted, 
and  such  certificates  deemed  cancelled;  and  the  moneys  now  in 
the  Department  of  State  received  from  the  Government  of  Vene- 
zuela on  account  of  said  awards,  and  all  moneys  that  may  here- 
after be  paid  under  said  treaty,  shall  be  distributed  pro  rata  in 
payment  of  such  awards  as  may  be  made  by  the  commission  to 
be  appointed  in  accordance  with  this  resolution." 

When  Venezuela  a  few  days  later  notified  the  United  States  of 
her  intention  of  suspending  payments  on  the  awards  under  the 
Convention  of  1866,  pending  the  negotiation  of  a  new  arrange- 
ment, Mr.  Frelinghuysen  took  the  view  that  the  joint  resolution 
was  a  purely  domestic  act  of  the  United  States  and  that  Vene- 
zuela should  continue  her  payments  until  the  negotiation  of  a  new 
convention  should  be  concluded.  When  the  negotiations  were  re- 
sumed Mr.  Frelinghuysen,  in  a  note  of  June  u,  1884,  reafiirming 
his  contention  as  to  the  continued  existence  of  the  Conven- 
tion of  1866,  submitted  a  proposed  draft  of  a  new  convention. 
The  Venezuelan  Government  continued  to  maintain  that  in  view 
of  the  action  taken  by  Congress  it  could  not  "recognize  any 
validity"  to  the  "certificates  made  payable  to  bearer,  issued  by 
the  prevaricating  commission." 

Mr.  Frelinghuysen  presented  his  views  to  the  President  in  a 
report  of  January  27,  1885,  in  which  he  proposed  that  certain  of 
the  claims  should  be  referred  to  the  Court  of  Claims  for  investiga- 
tion. This  report  the  President  communicated  to  the  Senate  that 
same  day.  The  whole  question  was  carefully  considered  by  Mr. 
Rice  in  a  report  of  February  18,  1885,  from  the  Committee  on 
Foreign  Affairs  presented  to  the  House  of  Representatives,  in 
which  he  said: 

"This  resolution,  although  not  officially  made  known  to  Ven- 
ezuela, was  known  to  her  as  one  of  the  public  laws  of  the  United 


THE  CLAIMS  AGAINST  VENEZUELA  73 

States;  and  it  was  not  strange  that  she  should  conclude  that  the 
United  States  would  no  longer  exact  payment  of  installments 
upon  those  awards  which  the  legislative  and  executive  branches 
of  her  government  had  admitted  based  in  fraud.  .  .  . 

"As  to  referring  these  awards,  or  any  of  them,  to  the  Court  of 
Claims,  as  recommended  by  the  Secretary,  your  committee  adopts 
the  language  and  conclusions  of  the  committee  of  the  Forty- 
seventh  Congress  in  reference  to  the  same  recommendation,  then 
made  by  the  Secretary,  to  the  effect  that  Venezuela  is  entitled  to 
an  honest  commission,  as  provided  by  the  treaty,  upon  which  she 
may  have  her  representation,  and  should  not  be  forced  into  a 
purely  United  States  tribunal  for  action  upon  claims  which  she 
has  a  right  to  have  passed  upon  by  such  a  commission." 

In  conclusion,  the  committee  reported  a  joint  resolution  ex- 
pressed in  substantially  the  same  terms  as  that  previously  adopted. 

Alter  the  change  of  administration  Mr.  Bayard,  Secretary  of 
State,  signed  on  December  5,  1885,  a  convention  for  the  creation 
of  a  new  commission.  The  ratifications  were  not  exchanged  within 
the  twelve  months  allowed  because  the  Venezuelan  Government 
did  not  approve  the  convention,  though  the  objections  were  not 
officially  presented  until  November  12,  1887. 

At  length  a  new  convention  was  signed  March  15,  1888,  em- 
bodying the  agreement  in  regard  to  the  point  of  difference  and 
extending  the  date  of  ratification  of  the  Convention  of  1885. 

By  this  stipulation  a  revision  of  the  proceedings  of  the  old 
commission,  in  the  broad  sense  and  spirit  of  the  resolution  of 
Congress  of  March  3,  1883,  was  at  length  provided  for.  It  turned 
out,  however,  that  the  time  allowed  for  the  exchange  of  the  rati- 
fications of  the  Conventions  of  December  5,  1885,  and  March  15, 
1888,  was  insufficient;  and  on  October  5,  1888,  still  another  con- 
vention was  signed,  by  which  it  was  provided  that  the  ratifica- 
tions of  all  three  conventions  should  be  exchanged  within  ten 
months  from  August  15,  1888.  The  exchange  was  effected  at 
Washington,  June  3,  1889. 

The  peculiar  circumstances  under  which  the  commission  was 
created  gave  rise  to  various  questions  as  to  its  duties  and 
powers.  These  questions,  which  were  general  in  their  nature, 
and  affected  the  board's  relation  to  the  cases  decided  by  the  old 


74  REVISION  OF  ARBITRAL  AWARDS 

commission,  became  the  subject  of  argument  and  of  a  formal 
opinion. 

In  regard  to  the  question  as  to  whether  the  commission  should 
"review"  the  former  adjudications  or  hear  and  pass  upon  the 
claims  as  if  presented  for  the  first  tune,  Mr.  Liddle,  chairman, 
reviewed  the  authorities  and  delivered  the  following  opinion  of 
the  commission: 

"All  things  considered,  we  are  led  to  the  conclusion  that  the 
original  claims  submitted  stand  before  us  with  respect  to  the 
hearing  and  determination  thereof  substantially  as  they  stood 
before  the  former  commission,  with  the  difference  indicated  in 
article  5,  as  to  additional  evidence;  that  we  are  engaged  in  a 
'rehearing'  (art.  8)  of  said  claims,  and  not  in  a  'review'  of  the 
former  adjudications  or  awards  pertaining  thereto;  and  that  in 
our  considerations  we  can  not  'concede'  to  such  adjudications  or 
awards  'force  and  legal  effect.' 

"There  remain,  as  before  suggested,  in  each  case  the  fact  of 
the  former  adjustment;  also  the  opinions  pertaining  to  it.  What- 
ever light  these  may  give  will,  of  course,  be  availed  of.  The  action 
of  the  former  commission,  like  any  authority  consulted,  will  have 
such  consideration  as  it  is  thought  entitled  to." 

The  commission  adjourned  September  2,  1890.  The  results  of 
its  labors  were  very  completely  analyzed  and  summarized  in  a 
report  of  the  secretary  which  bears  date  September  10,  1890.  By 
a  comparison  of  the  awards  of  the  two  commissions,  it  appears 
that  of  the  twenty-five  claims  disallowed  or  dismissed  by  the  old 
commission,  all  but  three  were  disallowed  or  dismissed  by  the 
new;  but  in  these  three  cases  awards  were  made,  respectively,  of 
$3,206.10,  $20,000,  and  $392,489.06,  amounting  in  all  to  the  sum 
of  $415,695.16.  On  the  other  hand,  of  the  twenty-four  awards 
made  in  favor  of  claimants  by  the  old  commission,  fifteen  were 
wholly  annulled  by  the  new,  while  the  remaining  nine  were  ma- 
terially modified. 

(Extracted  and  condensed  from  Moore:  International  Arbitra- 
tions, vol.  n,  pp.  1659-92.) 


THE  WEIL  AND  LA  ABRA  CASES  75 

(c)  Fraudulent  claim 


THE  WEIL  AND  LA  ABRA  CASES   (1868-1902) 

ON  July  4,  1868,  the  United  States  and  Mexico  concluded  a 
convention  for  the  adjustment  of  all  claims  of  the  citizens  of 
either  country  against  the  government  of  the  other  which  had 
been  presented  to  either  government  for  its  interposition  with  the 
other  since  February  2,  1848  (date  of  the  peace  treaty  of  Guada- 
lupe  Hidalgo),  and  which  remained  unsettled,  as  well  as  any  other 
claims  which  might  be  presented  within  a  specified  time. 

Several  hundred  claims  were  decided  and  awards  amounting 
to  more  than  four  million  dollars  made. 

Of  the  whole  sum  awarded  against  Mexico  more  than  one- 
fourth  was  allowed  on  two  claims,  those  of  Benjamin  Weil,  No. 
447,  American  docket,  and  La  Abra  Silver  Mining  Company, 
No.  489.  The  amount  awarded  in  favor  of  Weil  was  $487,810.68 
in  Mexican  gold,  or  according  to  the  protocol  of  January  31,  1878, 
$479,975.95  in  gold  com  of  the  United  States;  the  amount  awarded 
in  favor  of  La  Abra  Company  was  $683,041.32  in  Mexican  gold, 
or  $672,070.99  in  gold  coin  of  the  United  States.  The  two  awards 
aggregated  in  the  gold  coin  of  the  United  States  the  sum  of 
$1,152,046.94. 

The  claim  of  Weil,  who  was  a  naturalized  citizen  of  the  United 
States,  of  French  nativity,  was  for  damages  for  the  seizure  of 
cotton.  In  his  memorial  he  alleged  that  in  September,  1864,  he 
imported  into  Mexico  a  large  train  of  carts  containing  about 
1,914  bales  of  cotton,  and  that  the  cotton  was  seized  on  the  2oth 
of  that  month  between  Laredo  and  Piedras  Negras,  and  appro- 
priated by  General  Cortina,  of  the  Mexican  Liberal  forces.1  For 
this  alleged  wrong  he  claimed  $334,950  in  gold,  with  interest  from 
September  30,  1864,  at  the  rate  of  12  per  cent.  The  evidence  ac- 
companying his  memorial  consisted  of  an  affidavit  made  by  him- 

1  Perhaps  the  most  remarkable  feature  of  this  Weil  claim  is  that  the  Government 
of  the  United  States  should  have  been  willing  to  allow  for  presentation  a  claim  for 
alleged  losses  incurred  in  a  transaction  in  violation  of  the  prohibition  against  the 
export  of  cotton  from  the  Confederate  States.  Of  course,  as  far  as  concerned  the 
application  of  the  rules  of  international  law,  Mexico  would  have  been  equally  re- 
sponsible. 


76  REVISION  OF  ARBITRAL  AWARDS 

self  in  New  Orleans  in  September,  1869,  and  of  affidavits  made  by 
certain  other  persons  from  time  to  time  from  1869  to  1872. 

Upon  the  disagreement  of  the  commissioners  of  Mexico  and 
the  United  States,  the  umpire,  Sir  Edward  Thornton,  made  awards 
in  favor  of  these  two  claims. 

After  the  commission  had  concluded  its  labors  and  published 
its  awards,  the  Mexican  Minister  in  a  note  of  December  4,  1876, 
transmitted  to  Secretary  Fish  the  following  reservation  of  the 
Mexican  agent  in  regard  to  the  above-mentioned  awards:  "The 
Mexican  Government,  in  fulfillment  of  article  5  of  the  conven- 
tion of  July  4,  1868,  considers  the  result  of  the  proceedings  of 
this  commission  as  a  full,  perfect,  and  final  settlement  of  all 
claims  referred  to  in  said  convention,  reserving,  nevertheless,  the 
right  to  show  at  some  future  time,  and  before  the  proper  author- 
ity of  the  United  States,  that  the  claims  of  Benjamin  Weil  (No. 
447)  and  La  Abra  Silver  Mining  Company  (No.  489)  both  on  the 
American  docket,  are  fraudulent  and  based  on  affidavits  of  per- 
jured witnesses;  this  with  a  view  of  appealing  to  the  sentiments 
of  justice  and  equity  of  the  United  States  Government,  in  order 
that  the  awards  made  in  favor  of  the  claimants  should  be  set 
aside." 

Mr.  Fish  in  reply  "declined"  to  "entertain  the  consideration 
of  any  question  which  may  contemplate  any  violation  of  or  dje- 
parture  from  the  provisions  of  the  convention  as  to  the  final  and 
binding  nature  of  the  awards,  or  to  pass  upon,  or  by  silence  to  be 
considered  as  acquiescing  in,  any  attempt  to  determine  the  effect 
of  any  particular  award." 

To  this  the  Mexican  Minister,  Mr.  Mariscal,  made  rejoinder 
that  the  agent  representing  the  Mexican  Government  had  only 
expressed  "the  possibility"  that  the  Mexican  Government 
might  "at  some  future  time  have  recourse  to  some  proper  au- 
thority of  the  United  States  to  prove  that  the  two  claims  he  men- 
tioned were  based  on  perjury,  with  a  view  that  the  sentiments 
of  equity  of  the  Government  of  the  United  States,  once  convinced 
that  frauds"  had  "actually  been  committed,"  would  "prevent 
the  definite  triumph  of  these  frauds." 

Across  the  remaining  years  of  the  century  these  claims  drew 
their  slimy  trails. 


THE  WEIL  AND  LA  ABRA  CASES  77 

In  fulfillment  of  the  Act  of  Congress  of  June  18,  1878,  which 
requested  the  President  to  investigate  the  charges  of  fraud  in  the 
cases  of  Benjamin  Weil  and  La  Abra  Silver  Mining  Company, 
Secretary  of  State  Evarts  advised  that  "the  honor  of  the  United 
States  does  require  that  these  two  cases  should  be  further  in- 
vestigated by  the  United  States  to  ascertain  whether  this  gov- 
ernment has  been  made  the  means  of  enforcing  against  a  friendly 
power  claims  of  our  citizens  based  upon  or  exaggerated  by  fraud." 
Laboring  under  misapprehension  in  regard  to  the  La  Abra  case, 
Mr.  Evarts  expressed  the  opinion  that  "as  the  main  imputation 
in  the  case  of  La  Abra  Silver  Mining  Company  is  of  fraudulent 
exaggeration  of  the  claim  in  its  measure  of  damages,  it  m&y  con- 
sist with  a  proper  reservation  of  further  investigation  in  this  case 
to  make  the  distribution  of  the  installments  in  hand." 

A  bill  referring  the  matter  to  the  Court  of  Claims  for  investiga- 
tion having  failed  of  passage,  the  Mexican  Minister  informed 
Mr.  Evarts  July  30,  1880,  that  the  lawyers  employed  by  Mexico 
in  Washington  had  thought  proper  to  take  certain  measures 
before  the  courts  of  the  District  of  Columbia  against  the  pro- 
moters of  the  Weil  and  La  Abra  claims.  But  Mr.  Evarts  replied 
that  the  proposed  step  was  regarded  as  a  distinct  departure  from 
the  attitude  previously  taken  by  Mexico,  and  as  a  contradiction 
of  the  purpose  of  the  fifth  article  of  the  Convention  of  1868, 
which  absolutely  forbade  any  attempt  on  the  part  of  Mexico  to 
obstruct  the  execution  of  the  awards.  The  Mexican  Government 
proceeded  no  further  in  the  matter. 

After  these  distributions  on  the  La  Abra  claim  of  $240,683.06 
and  on  the  Weil  claim  of  $171,889.64  were  made,  when  Mr. 
Arthur  became  President,  all  further  distributions  on  the  awards 
in  question  were  suspended,  and  negotiations  were  opened  with 
Mexico  for  an  international  rehearing.1  To  this  end  a  convention 
was  signed  at  Washington  July  13,  1882,  but  it  failed  of  ratifica- 
tion after  pending  before  the  Senate  nearly  four  years. 

While  the  convention  was  pending  in  the  Senate,  John  J.  Key, 

1  On  December  g,  1881,  Mr.  Elaine,  being  still  Secretary  of  State,  in  a  note  to 
Mr.  Zamacona,  enclosing  a  report  of  a  secret  agent  of  the  Treasury  bearing  on  the 
Weil  claim,  observed:  "Permit  me  to  say  that  this  government  can  have  no  less 
moral  interest  than  that  of  Mexico  in  probing  any  allegation  of  fraud  whereby  the 
good  faith  of  both  in  a  common  transaction  may  have  been  imposed  upon." 


78  REVISION  OF  ARBITRAL  AWARDS 

one  of  Weil's  original  attorneys,  applied,  as  assignee  of  a  part  of 
the  award,  to  the  Supreme  Court  of  the  District  of  Columbia  for 
a  writ  of  mandamus  to  compel  Mr.  Frelinghuysen,  as  Secretary 
of  State,  to  distribute  the  installment  then  in  his  hands.  In  due 
course  the  case  came  before  the  Supreme  Court  of  the  United 
States,  by  which  the  proceeding  was,  on  January  7,  1884,  dis- 
missed. 

On  June  n,  1886,  Mr.  Morgan,  from  the  Committee  on  Foreign 
Relations,  submitted  to  the  Senate  a  report,  accompanied  with  a 
bill  to  provide  for  a  judicial  investigation  of  the  charges  of  fraud. 
The  report  discussed  very  fully  the  questions  of  law  relating  to 
the  reexamination  of  the  claims,  and  expressed  the  opinion  that 
the  claim  of  Weil  had  "no  actual  foundation  in  fact;  that  it  was 
originated  in  fraud  and  was  established  by  false  swearing." 

The  question  of  providing  for  a  judicial  investigation  of  the 
awards  continued  to  be  the  subject  of  discussion  hi  Congress, 
and  various  reports  were  submitted.  On  December  21,  1887,  the 
Senate  requested  the  production  of  any  correspondence  with 
the  Mexican  Government  in  relation  to  the  claims  since  January, 
1886,  together  with  a  statement  of  what  sums  had  been  paid  on 
them  by  Mexico  and  what  sums  had  been  distributed.  In  re- 
sponse to  this  resolution  the  President  communicated  to  the 
Senate  March  5,  1888,  a  report  of  Mr.  Bayard,  as  Secretary  of 
State,  to  which  were  annexed  various  documents.  Mr.  Bayard 
said:  "The  sole  question  now  presented  for  the  decision  of  this 
government  is  whether  the  United  States  will  enforce  an  award 
upon  which  the  gravest  doubts  have  been  cast  by  its  own  officers 
in  opinions  rendered  under  express  legislative  direction,  until 
some  competent  investigation  shall  have  shown  such  doubts  to 
be  unfounded,  or  until  that  branch  of  the  government  competent 
to  provide  for  such  investigation  shall  have  decided  that  there  is 
no  ground  therefor." 

Mr.  Bayard  also  argued,  on  the  strength  of  the  cases  of  Atocha 
and  Gardiner,  the  two  awards  under  the  convention  with  China 
of  1858,  the  case  of  the  Caroline,  and  the  opinion  of  the  Supreme 
Court  in  the  case  of  Frelinghuysen  z».  Key,  that  "  the  duty  of  the 
government  to  refuse  to  enforce  an  inequitable  and  unconscion- 
able award,"  had  been  "repeatedly  maintained  in  the  most  au- 


THE  WEIL  AND  LA  ABRA  CASES  79 

thoritative  manner."  He  also  disclosed  the  fact  that  he  had 
sought  to  obtain  a  judicial  investigation  of  the  Weil  and  La  Abra 
awards  without  awaiting  further  Congressional  action.  By  sec- 
tion 12  of  the  act  of  March  3,  1887,  in  relation  to  suits  against 
the  Government  of  the  United  States,  it  is  provided  that  when 
any  claim  or  matter  pending  in  any  of  the  executive  departments 
involves  controverted  questions  of  fact  or  of  law,  the  head  of 
such  department  may,  with  the  consent  of  the  claimant,  submit 
it  to  the  Court  of  Claims  for  decision.  Mr.  Bayard  stated  that, 
being  desirous  to  avoid  delay,  he  had  sought  the  consent  of  the 
claimants  to  such  a  submission,  but  that  the  attorneys  had,  in 
behalf  of  their  clients,  declined  the  proffered  investigation.  In 
conclusion,  he  suggested  that  a  recommendation  be  made  to 
Congress  to  provide  expressly  for  the  reference  of  the  claims  to  the 
Court  of  Claims,  or  such  other  court  as  might  be  deemed  proper, 
in  order  that  a  competent  investigation  of  the  charges  of  fraud 
might  be  made. 

When  Mr.  Blaine  again  became  Secretary  of  State,  in  March, 
1889,  he  adhered  to  the  course  of  his  two  immediate  predecessors 
in  refusing  to  distribute  the  moneys  on  hand  applicable  to  the 
two  awards  in  question.  In  consequence,  Sylvanus  C.  Boynton, 
as  assignee  of  a  part  of  the  Weil  claim,  on  November  23,  1889, 
filed  a  petition  in  the  Supreme  Court  of  the  District  of  Columbia 
against  Mr.  Blaine  as  Secretary  of  State  to  compel  him  to  make 
a  distribution.  In  due  course  the  case  came  before  the  Supreme 
Court  of  the  United  States,  and  on  March  23,  1891,  the  decree 
of  the  court  below  dismissing  the  petition  was  affirmed. 

In  December,  1892,  acts  were  at  length  passed  by  Congress 
conferring  jurisdiction  on  the  Court  of  Claims  to  investigate  both 
the  Weil  and  La  Abra  cases,  and  to  determine  whether  the  charges 
of  fraud  were  well  founded. 

On  March  28,  1900,  Secretary  of  State  Hay  sent  the  following 
note  to  the  Mexican  Ambassador  in  reference  to  the  La  Abra 
claim: 

"As  you  are  advised,  the  Congress  of  the  United  States,  act- 
ing upon  the  recommendation  of  this  Department,  passed  an  act 
which  took  effect  December  28,  1892,  authorizing  and  directing 
the  Attorney-General  to  bring  a  suit  in  the  Court  of  Claims  against 


8o  REVISION  OF  ARBITRAL  AWARDS 

La  Abra  Silver  Mining  Company  to  determine  whether  the  award 
made  by  the  United  States  and  Mexican  mixed  commission  in  re- 
spect to  the  claim  of  the  said  La  Abra  Company  was  obtained  by 
fraud;  and  in  case  it  should  be  so  determined,  to  bar  and  foreclose 
all  claims  in  law  or  equity  on  the  part  of  said  company,  its  repre- 
sentatives and  assigns,  to  the  money  received  from  the  Republic 
of  Mexico  on  account  of  such  award. 

"In  accordance  with  the  terms  of  the  Act  of  Congress  of  1892, 
the  Attorney- General  brought  suit  in  the  name  of  the  United 
States  against  said  La  Abra  Company,  and,  after  a  patient  and 
careful  hearing  of  the  case,  the  Court  of  Claims  decided  that  the 
award  made  by  the  mixed  commission  was  obtained  by  fraud,  and 
a  decree  was  rendered  barring  and  foreclosing  all  claim  on  the 
part  of  said  company,  its  agents,  attorneys,  or  assigns,  to  the 
money  received  from  the  Republic  of  Mexico  on  account  of  said 
award;  and,  on  an  appeal  being  taken  to  the  Supreme  Court  of 
the  United  States,  this  latter  tribunal  affirmed  in  full  the  decision 
of  the  Court  of  Claims. 

"Of  the  sum  paid  by  the  Government  of  Mexico  on  account  of 
La  Abra  award,  it  appears  that  there  is  remaining  under  the  con- 
trol of  this  Department  $403,030.08,  which,  in  accordance  with 
the  legislative  and  judicial  proceedings  above  cited,  it  is  now 
within  my  power  to  return  to  the  Government  of  Mexico.  Acting 
under  the  direction  of  the  President,  and  in  pursuance  of  the 
spirit  of  equity  and  fair  dealing  which  controls  the  conduct  of 
this  government  in  its  relations  with  the  neighboring  republics, 
it  is  now  my  very  agreeable  duty  to  inclose  to  you  herewith  a 
check  for  the  amount  above  named  drawn  upon  the  assistant 
treasurer  of  the  United  States  at  New  York  and  made  payable  to 
your  order." 

In  acknowledging  the  receipt  of  this  note  the  Mexican  Am- 
bassador said:  "I  hasten  to  express  to  Your  Excellency  my  most 
sincere  recognition  of  the  high  principles  of  justice  and  equity 
which  have  guided  the  Government  of  the  United  States  in  re- 
turning to  Mexico  the  aforesaid  sum  so  soon  as  the  obstacles  to 
such  action  were  removed.  I  do  not  doubt  that  my  government, 
on  receiving  this  agreeable  intelligence,  will  see  in  this  act  a  new 
proof  of  the  friendly  spirit  with  which  the  illustrious  Chief  Magis- 


THE  NORTHEASTERN  BOUNDARY  8 1 

trate  of  this  country  and  your  excellency  personally  cultivate  the 
pacific  relations  happily  existing  between  our  two  Republics  upon 
the  basis  of  honor,  morality,  and  benevolence,  with  the  wise  co- 
operation of  the  legislative  and  judicial  branches,  which  is  illus- 
trated particularly  in  the  act  of  exemplary  probity  to  which  I 
have  just  referred,  and  for  which  to  a  singular  degree  the  Mexican 
people  will  always  be  grateful." 

On  November  10,  1900,  Mr.  Hay  transmitted  to  the  Mexican 
Ambassador  a  check  for  $287,833.77,  the  unpaid  balance  of  the 
award  in  favor  of  Benjamin  Weil. 

The  Urgent  Deficiencies  Bill,  approved  by  President  Roose- 
velt February  14,  1902,  contained  the  following  item:  "For  re- 
paying to  the  Government  of  Mexico  money  erroneously  claimed 
by  and  paid  to  the  United  States  on  account  of  the  awards,  ad- 
judged to  have  been  fraudulently  made,  in  the  La  Abra  and  Weil 
claims,  four  hundred  and  twelve  thousand  five  hundred  and 
seventy- two  dollars  and  seventy  cents." 

(Condensed  and  extracted  from  Moore:  International  Arbitra- 
tions, vol.  n,  pp.  1324-48;  Foreign  Relations  of  the  United  States, 
1900,  pp.  781-84;  United  States  Statutes  at  Large,  vol.  32,  pt.  I, 
P.  5-) 


(d )  Excess  of  power 


THE  NORTHEASTERN  BOUNDARY  OF  THE  UNITED 
STATES   (1831) 

UNDER  the  convention  between  the  United  States  and  Great 
Britain  of  September  29,  1827,  the  King  of  the  Netherlands  was 
chosen  as  arbitrator  to  determine  the  true  divisional  line  between 
the  northeastern  part  of  the  United  States  and  the  adjacent  British 
possessions  under  the  treaty  of  peace  of  1782-83.  The  King  of  the 
Netherlands,  in  his  award  given  at  The  Hague,  January  10, 1831, 
held  that  neither  the  line  claimed  by  the  United  States  nor  that 
claimed  by  Great  Britain  so  nearly  answered  the  requirements 
of  the  treaty  that  a  preference  could  be  given  to  the  one  over  the 
other;  and  abandoning,  therefore,  as  impracticable,  the  attempt 


82  REVISION  OF  ARBITRAL  AWARDS 

to  draw  the  line  described  in  the  treaty,  he  recommended  a  line 
of  convenience.  When  the  award  was  delivered,  the  agent  of  the 
United  States  entered  a  respectful  protest  against  it  as  constitut- 
ing a  departure  from  the  powers  delegated  to  the  arbitrator  by  the 
high  contracting  parties.  The  British  Government  also  recognized 
the  fact  that  the  award  was  recommendatory  rather  than  decisive, 
and,  while  signifying  its  readiness  to  acquiesce  in  the  recommenda- 
tion, authorized  its  Minister  at  Washington  privately  to  intimate 
that  it  would  not  consider  the  formal  acceptance  of  the  award  by 
the  two  governments  as  precluding  modifications  of  the  line  by 
mutual  exchange  and  concession.  President  Jackson  was  inclined 
to  accept  the  award,  and,  it  seems,  afterwards  regretted  that  he 
had  not  done  so.  But,  as  it  was  unsatisfactory  both  to  Maine  and 
to  Massachusetts,  he  submitted  the  question  of  acceptance  or  re- 
jection to  the  Senate,  which,  by  a  vote  of  35  to  8,  resolved  that  the 
award  was  not  obligatory,  and  advised  the  President  to  open  a 
new  negotiation  with  Great  Britain  for  the  ascertainment  of  the 
line.  The  British  Government  promised  to  enter  upon  negotia- 
tions in  a  friendly  spirit,  and  it  was  agreed  that  both  sides  should 
meanwhile  refrain  from  exercising  jurisdiction  beyond  the  terri- 
tories which  they  actually  occupied.  The  boundary  was  settled 
by  the  Webster-Ashburton  Treaty  of  August  9,  1842. 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  vn,  pp. 
59-60;  see  also  Moore:  International  Arbitrations,  vol.  I,  pp.  85- 
161.) 


(e)  Essential  error 


THE  PELLETIER  CLAIM   (1884-87) 

BY  a  protocol  signed  at  Washington  May  24,  1884,  by  Mr. 
Frelinghuysen,  Secretary  of  State  of  the  United  States,  and  Mr. 
Preston,  Envoy  Extraordinary  and  Minister  Plenipotentiary  of 
Hayti,  the  Governments  of  the  United  States  and  Hayti  agreed 
to  refer  the  claims  of  Antonio  Pelletier  and  A.  H.  Lazare,  citizens 
of  the  United  States,  against  the  Republic  of  Hayti,  to  the  Hon- 


THE  PELLETIER  CLAIM  83 

orable  William  Strong,  formerly  a  justice  of  the  Supreme  Court  of 
the  United  States,  as  sole  arbitrator. 

Though  the  claims  were  thus  referred  together,  they  were  not 
otherwise  connected.  They  differed  both  in  origin,  in  character, 
and  in  ownership.  The  grounds  on  which  they  rested  were  sum- 
marily stated  in  the  protocol.  Those  in  the  case  of  Pelletier  were 
described  as  follows: 

"That  Pelletier  was  master  of  the  bark  William,  which  vessel 
entered  Fort  Liberte  about  the  date  claimed  foist  of  March  1861) ; 
that  the  master  and  crew  were  arrested  and  tried  on  a  charge  of 
piracy  and  attempt  at  slave  trading;  that  Pelletier,  the  master, 
was  sentenced  to  be  shot,  and  the  mate  and  other  members  of  the 
crew  to  various  terms  of  imprisonment;  that  the  Supreme  Court 
of  Hayti  reversed  the  judgment  as  to  Pelletier,  and  sent  the  case 
to  the  court  at  Cape  Haytien,  where  he  was  retried  and  sentenced 
to  five  years'  imprisonment;  and  that  the  vessel,  with  her  tackle, 
was  sold,  and  the  proceeds  divided  between  the  Haytian  Govern- 
ment and  the  party  who,  claiming  to  have  suffered  by  her  acts, 
proceeded  against  the  vessel  in  a  Haytian  tribunal." 

The  arbitrator  on  June  20,  1885,  transmitted  to  Mr.  Bayard, 
then  Secretary  of  State,  his  awards  on  both  the  claims  submitted 
to  him. 

November  18,  1886,  the  Haytian  Minister  filed  a  formal  pro- 
test in  which  he  maintained  that  the  award  in  the  case  of  Pelletier 
was  induced  by  a  clear  mistake  by  the  arbitrator  as  to  his  juris- 
diction under  the  protocol. 

December  8,  1886,  a  resolution  was  adopted  by  the  Senate,  re- 
questing the  President  to  communicate  to  that  body,  "if  not  in- 
consistent with  the  public  interests,  copies  of  the  awards  made  by 
the  arbitrator  hi  the  case  of  Antonio  Pelletier  and  in  the  case  of 
A.  H.  Lazare  against  the  Republic  of  Hayti,  under  a  protocol  made 
by  and  between  the  Secretary  of  State  of  the  United  States  and 
the  Minister  Plenipotentiary  for  the  Republic  of  Hayti,  dated 
24th  May,  1884,  together  with  such  action  as  may  have  been  had 
in  relation  thereto."  This  resolution  was  referred  to  the  Secre- 
tary of  State,  Mr.  Bayard,  who,  on  January  20,  1887,  submitted 
to  the  President  a  report,  which  the  latter  communicated  to  the 
Senate,  holding  that  neither  the  award  in  the  case  of  Pelletier  nor 


84  REVISION  OF  ARBITRAL  AWARDS 

that  in  the  case  of  Lazare  should  be  enforced.  The  reasons  for 
this  conclusion  were  set  forth,  those  in  the  case  of  Pelletier  being 
stated  first. 

Mr.  Bayard  stated  that  the  case  of  Pelletier  was  first  brought 
to  the  attention  of  the  Department  of  State  by  a  dispatch  dated 
April  13,  1861,  from  Mr.  G.  E.  Hubbard,  commercial  agent  of  the 
United  States  at  Cape  Haytien,  who  reported  that  Pelletier  was 
under  arrest  in  Hayti  on  the  charge  of  attempted  enslavement  in 
Haytian  waters  of  Haytian  citizens.  Mr.  Seward,  then  Secretary 
of  State,  after  a  prolonged  correspondence,  finally  refused,  on  No- 
vember 30,  1863,  to  interfere  with  the  action  of  Hayti  in  the  mat- 
ter, taking  the  position,  in  an  instruction  to  Mr.  Whidden,  then 
United  States  Commissioner  in  Hayti,  that  "his  [Pelletier's]  con- 
duct in  Hayti  and  on  its  coasts  is  conceived  to  have  afforded  the 
reasonable  ground  of  suspicion  against  him  on  the  part  of  the  au- 
thorities of  that  republic  which  led  to  his  arrest,  trial,  and  con- 
viction in  the  regular  course  of  law,  with  which  result  it  is  not 
deemed  expedient  to  interfere." 

Mr.  Bayard  further  stated  that  early  in  1864  Pelletier  escaped 
from  Hayti,  and  on  July  16  of  that  year  presented  to  the  Depart- 
ment of  State  a  long  memorial.  This  memorial,  with  other  papers 
in  the  case,  was  sent  to  the  House  of  Representatives,  in  compli- 
ance with  a  resolution  of  that  body,  on  April  3,  1868.  No  further 
action  was  taken  upon  it  by  the  Department  of  State,  nor  was 
further  action  taken  upon  it  by  the  House.  In  1871  Pelletier  made 
another  application  to  the  Department  of  State,  with  the  result 
that  he  was  informed  by  Mr.  Bancroft  Davis,  Acting  Secretary, 
September  26,  1871,  that  the  Department  had  "found  no  reason 
to  dissent  from  the  opinion  of  Mr.  Seward  in  regard  to  the  case  in 
his  instruction  to  Mr.  Whidden,  United  States  Minister  to  Hayti, 
of  the  3oth  of  November,  1863."  Pelletier  next  applied  to  the 
Senate,  where  his  case  was  referred  to  the  Committee  on  Foreign 
Relations.  On  June  9,  1874,  Mr.  McCreery  presented  from  that 
committee  a  unanimous  report  sustaining  the  views  of  Mr.  Seward. 
In  this  report  the  opinion  was  expressed,  after  an  examination  of 
the  facts,  that  if,  as  the  claimant  contended,  the  Haytian  courts 
had  no  jurisdiction  of  the  charges  against  him,  the  citizens  of 
Hayti  might  "be  said  to  hold  their  lives,  their  persons,  and  their 


THE  PELLETIER  CLAIM  8$ 

property  at  the  mercy  of  any  corsair  who  may  choose  to  deprive 
them  of  either."  The  claimant  then  applied  once  more  to  the 
House  of  Representatives,  securing  the  presentation  to  that  body 
on  January  n,  1878,  of  a  further  memorial  and  documents;  but 
a  resolution  was  adopted  by  which  the  House  declined  to  make  any 
recommendation  in  regard  to  the  claim. 

Having  thus  detailed  Pelletier's  failures  to  obtain  favorable 
action  by  the  Executive  or  by  Congress  upon  his  claim,  Mr. 
Bayard  stated  that  the  claimant  on  January  22,  1878,  again  ap- 
peared before  the  Department  of  State  "with  a  series  of  ex  parte 
statements  which  were  referred  to  Mr.  O'Connor,  then  examiner 
of  claims,"  who  made  two  reports,  one  on  February  9,  1878,  and 
the  other  on  March  29,  1878,  in  the  latter  of  which  he  maintained 
that  there  was  ground  for  a  demand  on  Hayti  for  redress.  On  the 
basis  of  this  report  instructions  were  sent  to  Mr.  Langston,  then 
Minister  to  Hayti,  who,  in  presenting  the  matter,  declared  that 
he  was  instructed  to  propose  "  a  prompt  and  impartial  arbitration  " 
of  the  claim,  and  to  state  that  in  default  of  such  an  arrangement 
the  Government  of  the  United  States  would  "require  its  satis- 
faction." "Under  this  pressure,"  said  Mr.  Bayard,  "the  Govern- 
ment of  Hayti,  which  had  at  first  peremptorily  refused  to  arbitrate, 
ultimately  consented  to  an  arbitration." 

Mr.  Bayard  then  referred  to  the  remonstrance  of  Hayti  of  No- 
vember 18,  1886,  against  the  execution  of  the  award,  and,  after 
narrating  the  circumstances  hi  which  the  claim  originated,  cited 
Judge  Strong's  declaration  as  arbitrator  that  the  voyage  of  the 
bark  William  was,  in  his  opinion,  "illegal;"  that  "its  paramount 
purpose  was  to  obtain  a  cargo  of  negroes,  either  by  purchase  or 
kidnapping,  and  bring  them  into  slavery  in  the  State  of  Louisi- 
ana;" and  that,  "beyond  doubt,"  "had  the  bark  been  captured 
and  brought  into  an  American  port,  when  she  was  seized  at  Fort 
LibertS,  she  would  have  been  condemned  by  the  United  States 
courts  as  an  intended  slaver."  Upon  the  facts,  as  established  in  the 
record  and  admitted  hi  these  declarations  of  the  arbitrator,  Mr. 
Bayard  stated  that  he  was  constrained  to  come,  on  the  question  of 
Hayti's  jurisdiction,  "to  a  conclusion  in  direct  conflict  with  that 
reached  by  the  learned  arbitrator."  In  this  relation  Mr.  Bayard 
maintained  (i)  that  Pelletier,  as  held  by  the  Haytian  courts,  by 


86  REVISION  OF  ARBITRAL  AWARDS 

the  Senate  Committee  on  Foreign  Relations  in  1874,  and  by  Judge 
Strong  in  1885,  visited  Hayti  in  1861  for  the  purpose  of  abducting 
and  enslaving  Haytian  citizens;  (2)  that  he  made,  when  in  Haytian 
waters,  such  preparations  for  carrying  out  this  plan  as  would,  if 
he  had  not  been  arrested,  have  ended  in  its  accomplishment; 
(3)  that  such  action  on  his  part  in  Haytian  waters  constituted, 
both  by  the  common  law  and  by  the  French  law  in  force  in  Hayti,  a 
criminal  attempt,  subject  to  public  prosecution;  (4)  that  the  at- 
tempt thus  made  was  within  Haytian  jurisdiction;  and  (5)  that 
the  trial  was,  so  far  as  could  be  learned,  decorous  and  fair,  and 
that  the  punishment  ultimately  imposed  was,  in  view  of  the  atroc- 
ity of  the  offense,  singularly  lenient. 

,  Mr.  Bayard  cited  authorities,  analyzed  the  four  constituents  of 
a  criminal  attempt,  and  discussed  the  jurisdiction  of  Hayti  to 
punish  such  offenses  in  her  waters. 

Having  thus  discussed  the  question  of  jurisdiction,  Mr.  Bayard 
proceeded  to  point  out  that  the  arbitrator,  while  proclaiming  in 
the  strongest  terms  the  turpitude  of  the  claimant's  conduct,  ap- 
peared, in  consequence  of  an  erroneous  construction  of  the  pro- 
tocol, to  have  considered  himself  bound  to  make  an  award  in  his 
favor. 

From  the  record  of  the  oral  arguments  it  appears  that  the  arbi- 
trator considered  (i)  that,  as  a  claim  had  been  made,  he  was  re- 
stricted to  the  decision  of  a  pure  question  of  law;  and  (2)  that  the 
protocol,  by  requiring  him  to  decide  "according  to  the  rules  of  in- 
ternational law  existing  at  the  time  of  the  transactions  complained 
of,"  restricted  him  to  the  decision  of  the  sole  question  whether 
Pelletier  had  been  guilty  of  piracy  by  law  of  nations,  as  distin- 
guished from  piracy  by  municipal  statute,  and  compelled  him  to 
award  damages  in  case  he  should  find  that  piracy  by  law  of  nations 
had  not  been  committed.  Mr.  Bayard,  on  the  other  hand,  main- 
tained that  the  protocol  was  not  designed  in  any  way  to  limit  the 
arbitrator's  inquiries  into  the  merits  of  the  claim  before  him,  but 
was  intended  "merely  to  insure  the  investigation  of  those  merits 
upon  principles  of  international  law  contemporaneous  with  the  al- 
leged wrongs,  undoubtedly  the  true  test  of  Hayti's  liability." 
Mr.  Bayard  was  "unable  to  see  why  the  fact  that  the  Govern- 
ment of  the  United  States  had  made  a  reclamation  in  Pelletier's 


THE  PELLETIER  CLAIM  87 

behalf  excluded  consideration  of  the  question  whether  that  gov- 
ernment 'ought  to  have  made  a  reclamation  in  his  behalf.'"  In 
his  opinion  the  question  of  "legal  right"  was  "vitally  connected 
with  the  question  whether  a  reclamation  ought  to  have  been  made," 
since  both  those  questions  involved  the  application  of  the  rules  of 
international  law  to  the  facts  of  the  case.  Those  facts  were  to  be 
ascertained  by  the  arbitrator.  The  Government  of  the  United 
States,  in  submitting  the  claim  to  arbitration,  had  acted  on  a 
prima  facie  case,  and  one  of  the  expressed  objects  of  submission 
was  to  obtain  a  full  investigation  of  the  facts.  The  previous  action 
of  the  government  on  ex  parte  information  should  not  be  regarded 
as  a  prejudgment  of  the  case  submitted.  Nor  was  there  anything 
in  the  protocol  that  prevented  the  consideration  of  the  question 
whether  Pelletier  was  guilty  of  piracy  under  the  Haytian  statute. 
"If  the  bark,"  said  Mr.  Bayard,  "when  she  entered  the  harbor 
of  Fort  Liberte,  within  the  unquestioned  territorial  jurisdiction  of 
Hayti,  loaded  with  the  implements  of  her  nefarious  errand,  and, 
as  the  evidence  led  the  arbitrator  to  conclude,  intending  there  to 
consummate  her  unlawful  enterprise,  could  have  been  condemned 
by  the  courts  of  the  United  States  as  an  intended  slaver,  why  could 
not  the  Haytian  court  condemn  her  and  try  and  imprison  her 
commander  on  the  same  ground,  if,  as  is  not  questioned,  Haytian 
law  made  provision  therefor?  It  matters  not  what  the  Haytian 
law  may  have  called  the  offense,  whether  it  described  it  as  piracy, 
or  as  attempted  piracy,  or  as  attempted  slave  trading,  or  whether, 
as  is  the  case,  it  punished  attempted  slave  trading  within  Haytian 
jurisdiction  as  piracy.  ...  It  was  a  rule  of  international  law  in 
1861,  and  is  a  rule  of  that  law  now,  that  offenses  committed  in  the 
territorial  jurisdiction  of  a  nation  may  be  tried  and  punished  there, 
according  to  the  definitions  and  penalties  of  its  municipal  law, 
which  becomes  for  the  particular  purpose  the  international  law 
of  the  case.  It  matters  not  what  the  offense  may  be  termed  if  it 
appear  that  a  violation  of  the  municipal  law  was  committed  and 
punished.  The  municipal  law  of  Hayti  is  not  alone  in  defining  the 
slave  trade  as  piracy.  It  is  so  denominated  by  the  laws  of  the 
United  States  (Revised  Statutes,  sec.  5376),  and  is  punishable 
with  death;  and  if  the  Government  of  the  United  States,  like  that 
of  Hayti,  were  to  make  attempts  at  slave  trading  equivalent  to  the 


88  REVISION  OF  ARBITRAL  AWARDS 

consummated  act  and  equally  punishable  therewith,  it  is  not  sup- 
posed that  the  rules  of  international  law  would  thereby  be  violated. 
I  cannot  presume  that  the  Government  of  the  United  States  by 
stipulating  for  the  decision  of  the  Pelletier  claim  according  to  the 
rules  of  international  law  existing  in  1861  intended  to  deny  to  Hayti 
the  right  at  that  time  to  execute  within  her  territorial  jurisdiction 
her  laws  against  slave  trading  or  piracy  therein  attempted,  and  I 
am  compelled  to  declare  that  had  such  been  this  government's 
expressed  intention  I  could  not  recommend  that  it  should  now  be 
executed  in  the  light  of  the  facts  developed  in  the  arbitration." 

Mr.  Bayard  further  maintained  (i)  that  it  was  the  duty  of  the 
Executive  to  refuse  to  enforce  an  unconscionable  award;  (2)  that, 
assuming  the  claimant's  naturalization  to  be  proved,  his  right, 
being  a  tort-feasor,  to  claim  compensation  for  the  consequences 
of  this  tort  must  be  denied;  (3)  that,  upon  the  general  question  of 
turpitude,  the  claim  was  one  that  could  not  be  pressed  by  the 
United  States  "either  as  a  matter  of  honor  or  as  a  matter  of  law;" 
(4)  that  the  principle  that  a  sovereign  could  not  in  honor  press  an 
unconscionable  and  unjust  award,  even  though  it  was  made  by  an 
international  tribunal  invested  by  law  or  treaty  with  the  power  of 
swearing  witnesses  and  receiving  or  rejecting  testimony,  applied 
with  still  greater  force  to  the  award  of  an  arbitrator  whose  acts 
in  administering  oaths  to  witnesses,  issuing  commissions,  and  de- 
termining what  questions  were  to  be  put,  must,  if  sanctioned  only 
by  the  Executive,  be  regarded  as  ultra  vires. 

Mr.  Bayard  then  remarks:  "In  view  of  the  position  taken  by 
Hayti,  as  exhibited  in  the  records  of  this  case,  it  becomes  now  in- 
cumbent on  the  Government  of  the  United  States  to  determine 
whether  it  will  enforce  the  payment  by  Hayti  of  this  award,"  and 
concludes:  "But  I  do  not  hesitate  to  say  that,  in  my  judgment,  the 
claim  of  Pelletier  is  one  which  this  government  should  not  press 
on  Hayti,  either  by  persuasion  or  by  force,  and  I  come  to  this 
conclusion,  first,  because  Hayti  had  jurisdiction  to  inflict  on  him 
the  very  punishment  of  which  he  complains,  such  punishment 
being  in  no  way  excessive  in  view  of  the  heinousness  of  the  offense, 
and,  secondly,  because  his  cause  is  of  itself  so  saturated  with  tur- 
pitude and  infamy  that  on  it  no  action,  judicial  or  diplomatic, 
can  be  based." 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE  89 

A  copy  of  the  executive  document  containing  the  foregoing 
report  was  sent  to  Mr.  Thompson,  then  Minister  of  the  United 
States  at  Port  au  Prince,  for  his  information.  Subsequently,  Mr. 
Thompson  enclosed  to  the  Department  of  State  an  extract  from  a 
message  to  the  National  Assembly  of  Hayti,  published  in  Le 
Moniteur  of  May  12,  1887,  in  which  President  Salomon  quoted 
several  passages  from  the  report,  commented  upon  the  "spirit  of 
justice"  which  they  manifested,  and  declared  that  Hayti  stood, 
in  respect  of  the  claims  in  question,  "disengaged  from  all  responsi- 
bilities." He  declared  that  he  would  like  to  see  the  report  in  the 
hands  of  every  Haytian,  and  that  orders  had  been  given  for  its 
translation  and  the  printing  of  a  large  number  of  copies. 

(Extracted  and  condensed  from  Moore:  International  Arbitra- 
tions, vol.  H,  pp.  1749-1805;  Foreign  Relations  of  the  United  States, 
1887,  pp.  591-630-) 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE 

The  Permanent  Court  of  Arbitration  at  The  Hague,  1910 

THE  parties  to  this  case  were  the  United  States  of  America  and 
the  United  States  of  Venezuela,  and  the  issue  was  the  reusability 
of  an  award  previously  rendered  by  an  international  commission. 
The  same  principle  had  been  involved  in  the  Pious  Fund  case,  but 
now  the  American  position  was  reversed.  In  the  former  case  the 
United  States  contended  for  the  doctrine  of  res  judicata  on  the 
ground  that  the  original  award  had  been  rendered  within  the 
limits  of  the  jurisdiction  of  the  commission;  in  the  present  case,  it 
was  maintained  that,  in  an  arbitration  of  the  matter  at  issue  in 
1904,  there  had  been  an  excess  of  jurisdiction  as  well  as  essential 
error,  and  that  for  these  reasons  the  award  should  be  set  aside  and 
the  case  taken  up  de  novo. 

The  circumstances  of  the  original  award  and  the  facts  out  of 
which  the  case  grew  were  as  follows: 

By  a  protocol  of  February  17,  1903,  the  United  States  and 
Venezuela  agreed  to  refer  to  a  mixed  commission  for  determina- 
tion "  all  claims  owned  by  citizens  of  the  United  States  of  America." 
All  awards  were  to  be  on  "a  basis  of  absolute  equity,  without 


90  REVISION  OF  ARBITRAL  AWARDS 

regard  to  objections  of  a  technical  nature,  or  of  the  provisions  of 
local  legislation."  The  decision  in  each  case  was  to  be  final  and 
"conclusive"  and  payments  were  to  be  in  gold  of  the  United 
States. 

Among  the  claims  submitted  to  the  commission  was  that  of 
the  Orinoco  Steamship  Company,  a  New  Jersey  corporation,  which 
had  taken  over  all  the  rights  and  liabilities  of  the  Orinoco  Shipping 
and  Trading  Company,  the  shareholders  of  which  had  almost  all 
been  American  citizens,  though  the  company  itself  had  been  under 
nominal  British  registry.  The  claims  against  Venezuela  had  in 
reality  been  acquired  by  the  latter  company,  but  inasmuch  as 
they  were  now  owned  by  American  citizens,  they  came  within  the 
scope  of  the  commission.  The  origin  of  the  claims  is  to  be  sought 
in  the  disturbed  economic  and  political  conditions  obtaining  in 
Venezuela  for  many  years.  Among  the  most  valuable  of  the  con- 
cessions in  the  gift  of  successive  governments  was  the  privilege 
of  the  exclusive  navigation  of  the  Orinoco.  This  had  been  the 
object  of  much  political  manipulation,  and,  by  reason  of  frequent 
changes  of  policy  with  respect  to  opening  and  closing  the  river  to 
foreign  trade,  contracts  had  been  set  aside  and  much  litigation 
had  ensued. 

Omitting  details,  the  claims  of  the  Orinoco  Steamship  Company 
arose  from  its  succession,,  through  various  business  changes,  to 
the  ownership  of  two  contracts,  the  Oleachea  contract  of  1891 
and  the  Grell  contract  of  1894.  Under  the  former,  the  Oleachea 
Company  had  secured  the  exclusive  navigation  of  the  Upper 
Orinoco  for  the  term  of  twenty  years  and  later  had  become  the 
creditor  of  the  Venezuelan  Government  by  reason  of  assistance 
given  in  times  of  revolution.  The  Grell  contract  had  established 
coastwise  trade  down  the  Orinoco  from  Ciudad  Bolivar  to  Mara- 
caibo  and  had  granted  to  the  concessionaire,  Ellis  Grell,  the  ex- 
clusive privilege  of  such  trade,  and  had  even  extended  to  him  the 
temporary  privilege  of  navigation  between  Orinoco  ports  and  the 
island  of  Trinidad,  notwithstanding  the  decree  of  July  i,  1893, 
closing  the  Macareo  and  Pedernales  channels  of  the  Orinoco  to 
foreign  trade.  This  contract  was  to  run  for  fifteen  years. 

In  1900  the  Orinoco  Shipping  and  Trading  Company,  which  by 
this  time  was  the  owner  of  both  contracts,  began  to  press  the  Vene- 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE  91 

zuelan  Government  for  payment  of  claims  arising  out  of  civil  war 
and  otherwise,  with  the  result  that  on  May  10  the  government 
agreed  to  extend  the  Grell  contract  six  years,  and  the  company 
agreed,  in  full  discharge  of  all  indebtedness,  to  accept  a  payment 
of  100,000  bolivars  down  and  a  similar  payment  to  be  made  at  a 
later  date.  Both  the  original  contract  of  1894  and  the  revised 
contract  of  1900  contained  the  Calvo  clause,  so  called,  to  the 
effect  that, 

"Questions  and  controversies  which  may  arise  with  regard  to 
the  interpretation  or  execution  of  this  contract  shall  be  resolved 
by  the  tribunals  of  the  Republic  in  accordance  with  its  laws,  and 
shall  not  in  any  case  give  occasion  for  international  reclamations." 

The  new  contract  was  broken  from  the  beginning.  The  second 
payment  of  100,000  bolivars  was  never  made;  the  navigation  of 
the  Orinoco  was  freed  from  the  restrictions  of  the  decree  of  July  i, 
1893,  thereby  rendering  valueless  the  concession  of  the  Grell 
contract,  while,  by  the  resolution  of  December  14,  1901,  the 
contract  itself  was  annulled  and  the  company  deprived  of  all  its 
privileges.  Early  in  1902  the  company  was  reorganized  as  the 
Orinoco  Steamship  Company,  wholly  American-owned,  and  the 
transfer  duly  registered  in  Venezuela.  But,  as  a  result  of  the  hos- 
tility of  the  Venezuelan  Government,  it  was  compelled  to  sell  out 
at  a  great  sacrifice  to  a  Venezuelan  firm  which  had  the  especial 
favor  of  the  government  and  in  which  President  Castro  was  said 
to  be  a  stockholder.  Shortly  after  the  sale,  one  Curao  secured  a 
concession  of  navigation  rights  similar  to  that  of  the  Grell  contract, 
and  in  course  of  time  transferred  it  to  the  Venezuelan  firm,  the 
contract  to  run  for  fifteen  years. 

The  claim  submitted  by  the  United  States  before  the  mixed 
commission  on  behalf  of  the  Orinoco  Steamship  Company  was  as 
follows: 

(1)  $1,209,700  for  annulment  of  the  Grell  contract  of  1894 
and  1900. 

(2)  100,000  bolivars  ($19,200)  due  from  the  Venezuelan  Govern- 
ment and  promised  May,  1900. 

(3)  $149,698  for  damages  sustained  in  revolutions,  together 
with  cost  of  services  rendered  the  Venezuelan  Government. 


92  REVISION  OF  ARBITRAL  AWARDS 

(4)  $25,000  for  counsel  fees  and  expenses  incurred  in  prosecut- 
ing the  claims. 

Failing  a  decision  by  the  commission,  the  claim  was  referred  to 
the  umpire,  Dr.  Barge,  of  the  Netherlands,  who  disallowed  the 
larger  part  of  it.  The  contract,  in  his  opinion,  did  not  contemplate 
a  concession  for  the  exclusive  navigation  of  the  two  channels.  It 
was  not "  the  right  to  navigate,"  but "  the  right  of  a  coastal  vessel," 
that  constituted  the  benefit  and  exemption.  This  privilege  was  not 
affected  by  reopening  the  Orinoco,  hence  no  damage  had  been  sus- 
tained. Besides,  the  Calvo  clause  operated  against  any  such 
claim,  as  well  as  the  failure  to  give  previous  notice  of  transfer  in 
accordance  with  Venezuelan  law.  These  two  latter  reasons  also 
invalidated  the  indebtedness  of  the  government  to  the  company. 
As  for  damages  claimed  because  of  civil  disturbances,  the  umpire 
had  awarded  only  $28,000,  no  allowance  having  been  made  for 
loss  of  revenue  due  to  the  blockade  of  the  Orinoco,  as  the  govern- 
ment was  within  its  rights  in  instituting  it.  Inasmuch  as  the 
greater  part  of  the  claim  was  thus  disallowed,  the  umpire  refused 
to  grant  counsel  fees  and  expenses.  Thus,  of  a  claim  amounting  to 
over  $1,400,000,  Dr.  Barge  had  awarded  only  $28,224.93. 

The  United  States  protested  the  award  and  during  the  regime 
of  Castro  made  it  and  other  American  claims  the  subject  of  dip- 
lomatic negotiation.  The  United  States  asked  that  they  go  to 
The  Hague  for  settlement,  but  Castro  refused  to  agree.  The  new 
Venezuelan  Government,  however,  was  more  amenable  to  discus- 
sion, and  two  of  the  outstanding  claims  were  settled  through 
diplomacy.  On  February  13,  1909,  a  protocol  was  drawn  up  by 
the  United  States  and  Venezuela,  providing  for  the  submission 
of  the  remaining  claims  to  the  Permanent  Court  of  Arbitration, 
but  two  of  these  were  soon  afterwards  settled  by  direct  negotia- 
tion, leaving  only  the  Orinoco  Steamship  Company  award  out- 
standing. 

The  arbitral  tribunal,  as  constituted  by  the  protocol,  consisted 
of  three  members,  none  of  whom  was  a  national  of  either  party. 
No  member  of  the  Permanent  Court  could  appear  as  counsel  hi 
the  case.  Definite  dates  were  fixed  for  the  exchange  of  cases  and 
counter-cases,  and  oral  arguments  and  replies  were  made  before 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE  93 

the  tribunal  after  its  meeting  on  September  28,  1910.  The  United 
States  appointed  as  arbitrator,  Senor  Gonzalo  de  Quesada,  Cuban 
Minister  to  Germany,  Venezuela  appointed  M.  Beernaert,  of 
Belgium,  and  these  selected  as  a  third  member  of  the  tribunal, 
M.  Lammasch,  of  Austria,  who  presided. 

The  questions  submitted  to  the  tribunal  were  as  follows: 

"The  arbitral  tribunal  shall  first  decide  whether  the  decision  of 
Umpire  Barge,  in  this  case,  in  view  of  all  the  circumstances  and 
under  the  principles  of  international  law,  is  not  void,  and  whether 
it  must  be  considered  to  be  so  conclusive  as  to  preclude  a  reexam- 
ination  of  the  case  on  its  merits.  If  the  arbitral  tribunal  decides 
that  said  decision  must  be  considered  final,  the  case  will  be  con- 
sidered by  the  United  States  of  America  as  closed;  but  on  the 
other  hand,  if  the  arbitral  tribunal  decides  that  said  decision  of 
Umpire  Barge  should  not  be  considered  as  final,  the  said  Tribunal 
shall  then  hear,  examine  and  determine  the  case  and  render  its 
decision  on  its  merits." 

The  United  States,  in  its  arguments  before  the  tribunal,  main- 
tained that  these  two  questions  could  not  be  treated  separately. 
To  show  the  necessity  for  revision,  it  would  be  necessary  to  trav- 
erse the  facts  of  the  case  itself,  though  it  agreed  with  Venezuela 
that  there  was  no  need  to  pass  upon  the  second  point  until  the  first 
had  been  decided.  But  the  United  States  further  contended  that, 
if  the  tribunal  decided  that  the  award  was  open  to  revision,  it  was 
to  hear  and  decide  the  entire  case  as  it  came  before  Dr.  Barge; 
in  other  words,  the  award  was  not  severable;  if  it  was  infected  in 
any  of  its  parts  with  illegality,  the  whole  case  must  be  examined 
and  determined  anew. 

In  its  contention  for  a  revision  of  the  award,  the  United  States 
admitted  fully  the  force  of  resjudicata,  but  held  it  applicable  only 
when  there  had  been  no  overstepping  of  the  limits  of  jurisdiction 
on  the  part  of  the  arbitrator.  It  admitted  also  that  mere  error  in 
appreciation  of  facts  or  in  judgment  is  not  a  ground  for  revision. 
Conceding  these  points,  it  proceeded  to  examine  the  chief  reasons 
assigned  by  publicists  to  uphold  revision  of  awards.  Comparative 
citations  showed  that  the  authorities  are  unanimous  that  an  evi- 
dent disregard  of  the  terms  of  the  compromis  invalidates  an  inter- 
national award.  Further,  the  great  weight  of  authority  would  as- 


94  REVISION  OF  ARBITRAL  AWARDS 

sign  essential  error  as  sufficient  ground  for  revision,  essential  error, 
according  to  the  argument  of  the  United  States,  being  tantamount 
to  a  denial  of  justice.  Precedent  also  supported  this  right  to  go 
behind  an  arbitral  award.  The  Pelletier  case  in  Hayti,  where  the 
arbitrator  did  not  give  full  effect  to  provisions  of  local  law,  as 
required  by  the  empowering  protocol,  and  the  boundary  award  of 
1827,  where  the  King  of  the  Netherlands  had  gone  outside  of  the 
treaty  of  1783  and  had  drawn  an  arbitrary  boundary  of  his  own, 
were  instances  in  point.  Venezuela  itself  had  exercised  this  right 
in  the  case  of  awards  of  the  mixed  commission  in  1866,  and  again 
in  1885.  The  reason  for  such  a  right  is  obvious:  revision  is  funda- 
mental in  the  conception  of  arbitration  as  a  judicial  remedy.  A 
judgment  must  conform  to  the  principles  of  law  and  equity  in- 
volved, and,  when  such  have  not  prevailed,  there  should  be  op- 
portunity for  revision.  "Arbitration  is  an  instrument  of  peace 
only  because  it  is  an  instrument  of  justice."  In  the  present  case 
the  umpire  had  been  mistaken  in  his  interpretation  of  the  nature 
of  the  company's  concession,  stating  it  to  be  one  thing,  when  it  was 
in  reality  something  else.  *  Besides,  he  had  applied  the  Calvo  clause 
and  local  technical  law  in  clear  disregard  of  the  Protocol  of  1903. 
For  these  reasons,  the  United  States  argued,  the  tribunal  should 
revise  his  award. 

Venezuela,  in  reply,  took  certain  objections  at  the  outset.  The 
United  States  had  not  made  its  protest  in  reasonable  time.  The 
revision  of  this  award  would  affect  other  awards  made  under  the 
Protocol  of  1903.  The  latter  had  distinctly  stated  that  all  awards 
under  it  were  to  be  "final  and  conclusive,"  and  hence  not  to  be 
reopened.  The  main  contentions  of  the  United  States  were  met 
by  the  argument  that  the  words  "  absolute  equity  "  in  the  Protocol 
of  1903  had  conferred  upon  Dr.  Barge  discretionary  powers  and 
hence  had  freed  him  from  any  technical  limitations  in  the  terms  of 
submission;  while  "essential  error"  to  justify  revision,  must  be 
based  upon  false  evidence  only,  and  this  had  not  been  present  in 
the  case.  Hence  Venezuela  asked  the  tribunal  to  apply  the  doc- 
trine of  res  judicata  and  dismiss  the  appeal  for  revision. 

In  its  award,  which  was  rendered  October  25,  1910,  the  tribunal, 
while  endorsing  the  principle  that  arbitral  decisions  should  in 
general  be  accepted  as  final,  recognized,  as  here,  the  occasional 


THE  ORINOCO  STEAMSHIP  COMPANY  CASE  95 

desirability  of  review.  As  both  parties  were  in  substantial  agree- 
ment as  to  what  defects  invalidated  an  arbitral  decision,  it  re- 
mained only  to  discover  whether  any  of  these  defects  had  been  pres- 
ent in  the  award  under  consideration.  The  tribunal  considered 
that  the  original  award  had  consisted  of  distinct  decisions  on 
separate  claims,  and  that  therefore  "the  nullity  of  one  is  without 
influence  on  any  of  the  others,  more  especially  when,  as  in  the 
present  case,  the  integrity  and  the  good  faith  of  the  arbitrator 
are  not  questioned."  Hence  the  principle  of  severability  was  ad- 
mitted and  the  tribunal  proceeded  to  examine  each  claim  sepa- 
rately. On  this  view  of  it,  the  greater  part  of  the  award  was  held 
to  contain  no  ground  for  annulment;  "the  appreciation  of  the  facts 
of  the  case  and  the  interpretation  of  the  documents  were  within 
the  competence  of  the  umpire,  and  his  decisions,  when  based  on 
such  interpretation,  .  .  .  not  subject  to  revision."  That  is,  the 
umpire's  interpretation  of  the  nature  of  the  Grell  contract  was 
not  vitiated  even  though  his  decision  had  been  partly  based  on 
objections  of  a  technical  character.  However,  in  the  opinion  of 
the  tribunal,  the  application  of  the  latter  to  the  debt  of  100,000 
bolivars  rendered  this  part  of  the  award  void,  and  the  tribunal 
awarded  this  sum  in  full.  Some  other  amounts  claimed  were  also 
awarded  for  the  same  reason,  and,  as  the  total  damages  thus  ob- 
tained by  the  company  were  considerably  increased,  the  tribunal 
granted  counsel  fees  on  the  basis  of  equity  to  the  extent  of  $7,000. 
In  all,  the  total  amount  awarded  by  the  tribunal,  inclusive  of  in- 
terest, was  over  $64,000  in  excess  of  the  Barge  award. 

Thus  the  award  was,  in  part,  set  aside  on  the  ground  of  failure 
to  conform  with  the  terms  of  the  defining  protocol.  "The  all- 
important  thing  about  the  decision,"  says  one  commentator,  "is 
that  for  the  first  time  an  international  award  has  been  annulled 
by  an  international  tribunal.  ...  It  is  believed  that  it  may 
fairly  be  said  to  have  decided  that  departure  from  the  terms  of  the 
protocol  is  a  just  ground  for  annulling  an  international  award 
and  furthermore  that  disregard  of  the  rules  of  law  enjoined  by  the 
terms  of  submission  amounts  to  a  departure  from  the  submission." l 

(Case,  Counter-case,  and  Appendix,  published  by  the  Govern- 

1  W.  C.  Dennis  (Agent  for  the  United  States  in  the  case)  in  American  Journal 
of  International  Law,  vol.  v,  p.  54. 


96  REVISION  OF  ARBITRAL  AWARDS 

ment  Printing  Office,  Washington;  Protocoles  de  Seances  du  Tri- 
bunal, published  by  the  International  Bureau  at  The  Hague; 
American  Journal  of  International  Law  [1911],  vol.  v,  pp.  32-65, 
230-35;  Printed  Arguments  of  the  parties  before  the  Arbitral 
Tribunal;  G.  G.  Wilson,  The  Hague  Arbitration  Cases.) 


(/)  New  evidence 


THE  LAZARE  CLAIM   (1884-87) 

THE  claim  of  A.  H.  Lazare  was,  by  the  terms  of  the  protocol 
of  May  24,  1884,  referred  with  that  of  Antonio  Pelletier  to  the 
Honorable  William  Strong,  formerly  a  justice  of  the  Supreme  Court 
of  the  United  States,  as  sole  arbitrator.  The  grounds  of  the  claim 
of  A.  H.  Lazare  were  described  in  the  protocol  as  follows:  "That 
Lazare  entered  into  a  written  contract  with  the  Haytian  Govern- 
ment September  23,  1874,  for  the  establishment  of  a  national 
bank  at  Port  au  Prince,  with  branches,  the  capital  being  fixed 
first  at  $3,000,000,  and  afterward  reduced  to  $1,500,000,  of  which 
capital  the  Government  was  to  furnish  one-third  part  and  Lazare 
two-thirds;  that  the  bank  was  to  be  opened  in  one  year  from  the 
date  of  the  contract,  and  an  extension  of  forty-five  days  on  this 
tune  was  granted  on  Lazare's  request,  and  that  on  the  day  when 
the  bank  was  to  be  opened,  the  Haytian  Government,  alleging 
that  Lazare  had  not  fulfilled  his  part  of  the  engagement,  declared, 
in  accordance  with  the  stipulations  of  article  24  of  the  agreement, 
the  contract  null  and  void,  and  forfeited  on  his,  Lazare's,  part." 

In  the  case  of  Lazare,  as  well  as  in  that  of  Pelletier,  Mr.  Bayard 
reported  in  favor  of  opening  the  award.  His  recommendation  in 
the  Lazare  case  rested  (i)  on  certain  papers  in  the  Department 
of  State  which  were  not  shown  to  have  been  laid  before  the  ar- 
bitrator; (2)  on  irregularities  in  the  arbitrator's  proceedings; 
(3)  on  errors  in  the  award;  (4)  on  the  alleged  newly  discovered 
evidence;  and  (5)  on  a  letter  of  Judge  Strong  to  Mr.  Preston,  the 
Haytian  Minister,  of  February  18,  1886.  The  irregularities  alleged 
to  exist  in  the  arbitrator's  proceedings  were  the  same  as  those 


THE  LAZARE  CLAIM  97 

pointed  out  in  the  case  of  Pelletier,  in  respect  of  the  swearing  of 
witnesses,  the  issuing  of  commissions,  and  the  admission  and  re- 
jection of  testimony.  The  letter  of  Judge  Strong  to  Mr.  Preston 
related  to  the  "newly  discovered"  evidence.  In  that  letter  Judge 
Strong  stated  that,  after  his  functions  as  arbitrator  had  ceased, 
the  newly  discovered  evidence  was  laid  before  him  by  counsel  for 
Hayti  with  an  application  for  a  rehearing;  that  he  denied  the  ap- 
plication verbally  on  the  ground  that  his  power  over  the  award 
was  extinct;  but  that  the  newly  discovered  evidence  was  of  such  a 
character  that  it  would  "materially  have  affected"  his  decision 
had  it  been  presented  to  him  pending  the  hearing  of  the  case,  and 
before  his  powers  under  the  protocol  had  terminated.  The  evi- 
dence in  question  tended  to  show  (i)  that  Lazare  was,  at  the  time 
of  his  transactions  in  Hayti,  insolvent;  (2)  that  his  connections 
with  the  steamship  and  railway  business  in  New  York,  prior  to  his 
going  to  Hayti,  were  wholly  unremunerative;  (3)  that  the  firms 
with  which  he  negotiated  in  London,  after  the  failure  of  Benson 
&  Co.,  had  little  or  no  standing,  and  were  lacking  in  ability  to  ob- 
tain the  money  which  he  required;  and  (4)  that  in  fact  he  was 
wholly  unprepared  to  furnish  in  any  form  the  funds  which  he  had 
engaged  to  provide  for  the  opening  of  the  bank. 

After  submitting  its  grounds,  the  report  presented  its  conclusion 
adverse  to  the  validity  of  the  claim  and  to  the  effect  that  whenever 
it  was  discovered  that  a  claim  against  a  foreign  government  could 
not  be  honorably  and  honestly  pressed,  such  claim  should,  no 
matter  what  the  period  of  procedure,  be  dropped. 

In  the  course  of  these  conclusions  the  report  stated  that  when  a 
copy  of  Mr.  Bassett's  dispatch,  together  with  a  memorandum  of 
Mr.  Lazare's  statement  of  1877  as  to  his  receipt  of  the  Haytian 
Government's  notice  of  deposit,  was  given  to  Judge  Strong,  he 
made,  on  June  23,  1886,  an  oral  statement  to  the  Department  of 
State  as  follows:  "In  view  of  these  documents,  which  were  not  ex- 
hibited to  me,  I  am  clearly  of  the  opinion  that  the  award  ought 
to  be  opened;  that  the  government  cannot  afford  to  press  [a]  claim 
not  clearly  founded  in  honesty;  that  if  these  documents  had  been 
presented  to  me,  together  with  the  other  affidavits  presented  to 
me  on  the  motion  to  open  the  award,  they  would  have  made  a 
vast  difference  in  the  award  which  I  did  make.  These  papers  tend 


98  COMMISSIONS  OF  INQUIRY 

to  shew  that  the  only  fault  of  Hayti  was  the  failure  to  propose 
arbitration  instead  of  at  once  declaring  the  contract  void,  the  con- 
tract having  stated  that  differences  should  be  referred  to  arbitra- 
tors. That  not  having  been  done,  resort  may  be  had  to  law  to  re- 
cover such  injuries  as  the  claimant  may  have  sustained.  Under 
the  circumstances  it  would  seem  to  me  that  he  could  only  claim 
for  expenses  necessarily  incurred  by  him." 

As  a  consequence  of  Secretary ,  Bayard's  report  the  Govern- 
ment of  the  United  States  refused  to  press  the  claim. 

(Extracted  and  condensed  from  Moore:  International  Arbitra- 
tions, vol.  n,  pp.  1749-1805.) 


§  ii.   COMMISSIONS  OF  INQUIRY 


THE  DOGGER  BANK  INCIDENT  (1904) 

DURING  the  war  with  Japan,  the  Russian  Government  found  it 
necessary,  in  the  course  of  its  naval  operations,  to  send  a  fleet  from 
the  Baltic  to  the  Far  East.  While  it  was  being  mobilized,  vague 
rumors  were  afloat  that  it  was  to  be  the  object  of  secret  attack  by 
Japanese  mines  and  torpedo-boats,  even  in  the  Baltic  itself,  and 
it  was  with  feelings  of  nervousness  that  the  Russians  contemplated 
the  passage  through  the  comparatively  narrow  and  enclosed  waters 
of  Northwestern  Europe.  While  in  the  Danish  straits  they  were 
reported  as  exhibiting  exaggerated  suspicion  of  all  merchant  craft 
and  in  this  state  of  mental  tension  they  entered  upon  the  passage 
through  the  North  Sea. 

On  the  night  of  Friday,  October  21,  1904,  the  fifth  section  of  the 
Russian  fleet  fell  in  with  a  Hull  fishing  fleet,  which  was  at  work 
trawling  on  the  customary  fishing  grounds  on  the  Dogger  Bank 
about  220  miles  east  from  the  British  coast.  This  section  sailed 
around  the  trawlers,  but  the  sixth  and  last  section,  which  came 
upon  the  fishermen  shortly  after  midnight,  sailed  through  the 
fishing  fleet.  Suddenly,  to  the  astonishment  of  the  trawlers,  many 
of  whom  were  burning  "flares,"  the  warships  opened  fire  on  them 
and  kept  the  bombardment  up  for  twenty  minutes.  At  the  end  of 


THE  DOGGER  BANK  INCIDENT  99 

that  time,  one  trawler,  the  Crane,  was  sinking,  five  others  were 
damaged,  two  men  were  killed  and  six  wounded.  After  the  firing, 
the  Russian  warships  sailed  away  to  the  southwest,  without  stop- 
ping to  ascertain  the  results  of  their  attack,  and  were  not  heard 
from  until  the  afternoon  of  the  23d,  when  they  were  reported  as 
passing  through  the  Straits  of  Dover. 

When  the  news  of  the  attack  became  known,  the  behavior  of 
the  Russian  fleet  astounded  not  only  Great  Britain,  but  all  other 
nations,  including  Russia  itself.  Not  only  the  gravity  of  the  im- 
mediate situation  was  considered,  but  also  the  possible  danger 
that  menaced  neutral  commerce  if  the  Russian  fleet  was  to  continue 
its  voyage  in  such  a  frame  of  mind.  Besides",  public  opinion  in  Great 
Britain  was  the  more  easily  inflamed  because  of  the  alliance  with 
Japan  and  there  was  danger  that  the  incident  might  bring  about 
British  participation  in  the  war.  Indeed,  so  serious  was  the  crisis 
precipitated,  that,  on  the  24th,  "preliminary  orders  for  mutual 
support  and  cooperation  were,  as  a  measure  of  precaution,  issued 
from  the  Admiralty  to  the  Mediterranean,  Channel,  and  Home 
Fleets,"  and  steps  were  taken  to  intercept  the  Russian  fleet  at 
Gibraltar,  should  such  extreme  action  prove  necessary. 

As  soon  as  the  information  reached  him,  the  British  Ambassador 
to  Russia,  acting  on  his  own  initiative,  asked  Count  Lamsdorff, 
the  Russian  Foreign  Minister,  for  an  explanation  of  the  conduct 
of  the  fleet ;  but  Count  Lamsdorff  replied  that  he  was  not  yet  in 
possession  of  any  official  information  from  Russian  sources.  To 
his  own  colleagues,  however,  he  stated  that  full  reparation  would 
be  made,  if  the  Baltic  fleet  were  found  to  be  at  fault. 

On  October  25,  the  British  Foreign  Office,  in  an  official  commu- 
nication to  the  press,  announced  that  it  had  taken  prompt  action, 
as  follows:  "The  Foreign  Office  have  been  in  communication  with 
representatives  of  the  fishing  industry  of  Hull  and  Grimsby,  and 
have  obtained  from  them  a  full  statement  of  the  facts  connected 
with  the  attack  by  the  Russian  Baltic  fleet  upon  a  part  of  the 
Hull  trawling  fleet.  Urgent  representations  based  upon  this  in- 
formation have  been  addressed  to  the  Russian  Government  at 
St.  Petersburg,  and  it  has  been  explained  that  the  situation  is  one 
which,  in  the  opinion  of  His  Majesty's  Government,  does  not 
admit  of  delay."  (London  Times,  October  25,  1904.)  It  was  fur- 


TOO  COMMISSIONS  OF  INQUIRY 

ther  intimated  by  Lord  Lansdowne,  Secretary  for  Foreign  Affairs, 
that  immediate  explanations  and  reparation  had  been  asked  for, 
special  emphasis  having  been  put  upon  the  failure  of  the  Russians 
to  render  any  assistance  to  the  victims  of  the  attack. 

The  same  day,  the  Tsar,  though  still  without  news  from  the 
fleet,  sent,  through  Count  Lamsdorff,  a  message  to  King  Edward, 
in  which  he  attributed  the  incident  to  "a  very  regrettable  mis- 
understanding" and  expressed  his  sincere  regret  to  the  King  and 
government,  adding  that  "he  would  take  steps  to  afford  complete 
satisfaction  to  the  sufferers  as  soon  as  the  circumstances  of  the 
case  were  cleared  up." 

On  October  26,  the  Russian  fleet  arrived  at  Vigo  and,  for  the 
first  time  since  the  Dogger  Bank  incident,  its  commander,  Ad- 
miral Rozhdestvensky,  came  into  touch  with  his  home  authorities. 
On  the  27th,  it  was  announced  from  St.  Petersburg  that  an  ex- 
planation had  been  received  from  the  admiral,  as  follows:  "Admiral 
Rozhdestvensky  telegraphs  that  the  Baltic  fleet  hi  the  course  of 
its  voyage  met  hundreds  of  fishing  boats  to  which  no  harm  was 
done,  with  the  exception  of  the  boats  in  question,  among  which 
were  noticed  two  torpedo-boats,  one  of  which  disappeared,  the 
other,  according  to  the  fishermen,  remaining  with  them  till  morn- 
ing. In  the  circumstances  no  warships  could  have  acted  otherwise. 
He  expresses  deep  regret  for  the  victims  if  they  were  innocent  in 
the  matter.  The  incident  began  by  the  two  torpedo-boats  at- 
tacking the  leading  vessel  of  the  fleet  in  the  darkness,  and  when  the 
searchlights  disclosed  the  presence  of  several  steam  fishing  boats, 
an  endeavor  was  made  to  spare  them,  and  the  Russians  stopped 
firing.  The  torpedo-boats  then  disappeared.  The  fishermen  com- 
plain that  a  Russian  torpedo-boat  remained  behind  and  yet  did 
not  attempt  to  render  assistance.  This  he  denies,  the  fact  being 
that  there  were  no  torpedo-boats  with  the  detachment.  The  de- 
tachment did  not  attempt  to  offer  any  help,  as  they  feared  a  trap, 
the  fishing  boats  being  without  lights,  although  later  some  lights 
were  shown."  (London  Times,  October  28,  1904.) 

On  the  28th,  Mr.  Balfour,  the  British  Premier,  in  the  course 
of  a  public  address,  made  the  following  statement  on  the  authori- 
zation of  the  Russian  Ambassador  at  London:  "The  Russian  Gov- 
ernment have  now  ordered  the  detention  at  Vigo  of  that  part  of 


THE  DOGGER  BANK  INCIDENT  IOI 

the  fleet  which  was  concerned  in  the  incident  in  order  that  -  the 
naval  authorities  may  ascertain  what  officers  were  responsible  for 
it.  These  officers  and  any  material  witnesses  will  not  proceed  with 
the  fleet  on  its  voyage  to  the  Far  East.  An  inquiry  will  be  insti- 
tuted into  the  facts,  and  we  and  the  Russian  Government  are 
agreed  upon  an  International  Commission  of  the  kind  provided  for 
by  the  Hague  Convention  —  I  should  say  that  that  has  nothing 
to  do  with  arbitration;  that  is  the  constitution  of  an  International 
Commission  to  find  out  facts  —  and  any  person  found  guilty  by 
this  tribunal  will  be  tried  and  punished  adequately."  (London 
Times,  October  29, 1904.) 

In  accordance  with  the  Russian  orders,  four  officers  were  de- 
tained at  Vigo,  on  the  departure  of  the  Baltic  fleet  from  that  port 
on  November  i.  There  was  some  demur  on  the  part  of  Great 
Britain  at  the  number  and  the  rank  of  those  left  behind,  but  Russia 
gave  distinct  assurance  "that  the  officers  detained  were  those  ac- 
tually implicated  in  this  disaster  .  .  .  and  that,  if  it  should  result 
from  the  investigations  of  the  International  Commission  that 
other  officers  were  culpable,  those  officers  also  will  be  adequately 
punished."  As  further  proof  of  sincere  intention,  the  Russian 
Government  undertook  to  issue  to  the  fleet  "instructions  of  a  kind 
calculated  to  prevent  the  recurrence  of  such  incidents,  and  to  se- 
cure neutral  commerce  from  risk  or  inconvenience." 

The  formal  agreement  referring  the  incident  to  a  Commission 
of  Inquiry  was  signed  at  St.  Petersburg,  November  25,  by  Count 
Lamsdorff  and  Sir  Charles  Hardinge,  the  British  Ambassador. 
In  the  preamble,  it  was  stated  that  conformably  to  Articles  ix  to 
xrv  of  the  Hague  Convention  for  the  Pacific  Settlement  of  Inter- 
national Disputes,  the  commission  was  entrusted  with  "  the  task 
of  elucidating  by  means  of  an  impartial  and  conscientious  investi- 
gation the  questions  of  fact  connected  with  the  incident."  Article 
I  provided  that  the  commission  was  to  consist  of  five  members,  of 
whom  two  were  to  be  officers  of  high  rank  in  the  British  and  Im- 
perial Russian  navies  respectively.  The  Governments  of  France 
and  of  the  United  States  were  each  to  designate  to  the  commission 
one  of  their  nationals  —  also  of  high  naval  rank.  These  four  were 
to  agree  upon  the  fifth  member,  but,  failing  agreement,  the  selec- 
tion was  to  be  made  by  the  Emperor  of  Austria.  Each  party  was 

SANTA  BARBARA  STATE  COLLEGE  LIBRA!  T 
*£r\«z- r  G*  f 


102  COMMISSIONS  OF  INQUIRY 

likewise  to  appoint  a  legal  assessor  to  advise  the  commissioners,  and 
an  agent  officially  empowered  to  take  part  in  the  labors  of  the 
commission. 

The  scope  of  the  commission  was  defined  in  Article  n:  "The 
commission  shall  inquire  into  and  report  on  all  the  circumstances 
relative  to  the  North  Sea  incident,  and  particularly  on  the  question 
as  to  where  responsibility  lies,  and  the  degree  of  blame  attaching 
to  the  subjects  of  the  two  high  contracting  parties  or  to  the  sub- 
jects of  other  countries  in  the  event  of  their  responsibility  being 
established  by  the  inquiry." 

Under  the  remaining  six  articles,  the  commission  was  empowered 
to  settle  its  own  procedure;  the  parties  undertook  to  afford  every 
facility  necessary  to  insure  the  success  of  the  commission;  Paris 
was  designated  as  the  place  of  meeting,  which  was  to  be  held  as 
soon  as  possible  after;  the  signing  of  the  agreement;  a  report, 
signed  by  all  the  commissioners,  was  to  be  presented  to  the  two 
parties;  all  decisions  were  to  be  taken  by  a  majority  of  votes;  and 
the  expenses  of  the  commission  were  to  be  shared  equally  by  the 
two  governments. 

As  commissioners,  the  Russian,  British,  French,  and  American 
Governments  designated  Admirals  Kaznakoff,  Beaumont,  Four- 
nier  and  Davis  respectively.  These  met  for  the  first  time  at  Paris 
on  December  22  and  chose  as  fifth  commissioner  Admiral  Spaun, 
of  the  Austro-Hungarian  navy.  Thereupon  adjournment  was 
made  until  January  9,  1905,  when  the  sittings  were  resumed,  with 
Admiral  Fournier  as  president  and  Admiral  Dubassoff  as  Russian 
representative  in  place  of  Admiral  Kaznakoff,  who  had  retired 
through  illness.  The  early  sessions  of  the  commission  were  occu- 
pied in  drawing  up  the  rules  of  procedure  which  it  was  to  follow. 
As  this  was  the  first  instance  where  an  international  inquiry  under 
the  Hague  Convention  had  been  applied,  any  procedure  employed 
was  likely  to  be  regarded  as  a  precedent,  and  so  satisfactory  did 
the  rules  adopted  prove  that  the  Hague  Conference  of  1907, 
in  formulating  that  part  of  its  work  dealing  with  International 
Commissions  of  Inquiry,  embodied  in  large  part  the  procedure  of 
the  commission  of  1905. 

After  the  adoption  of  rules,  the  commission  sat  more  or  less 
regularly  until  February  25,  when  its  labors  were  concluded  by 
the  publication  of  its  report. 


THE  DOGGER  BANK  INCIDENT  103 

As  presented  before  the  commission,  the  British  contentions  were 
based  on  the  ample  testimony  of  the  fishermen  of  the  trawling 
fleet,  who  were  positive  in  their  denial  that  there  had  been  either 
torpedo-boat  or  destroyer  on  the  fishing  grounds  on  the  night  of 
October  21-22.  "No  warship  of  any  description,"  it  was  asserted, 
"other  than  those  of  the  Imperial  Russian" navy  were  among  the 
trawlers  on  the  night  in  question  and  no  war- vessels  had  been  seen 
by  any  of  the  trawlers  for  some  time  before.  There  was  no  war 
material  of  any  description  on  board  any  of  the  ships  of  the  fishing 
fleet.  There  were  no  Japanese  war- vessels  of  any  description  hi  the 
North  Sea  at  that  time,  nor  were  there  any  Japanese  on  board  any 
vessels  of  the  fishing  fleet."  The  firing  upon  the  trawlers  was  in  no 
way  justifiable,  it  had  not  been  controlled  to  avoid  unnecessary 
damage,  and  had  been  continued  long  after  the  peaceful  character 
of  the  fishing  vessels  had  been  ascertained.  No  fault  of  any  kind 
could  be  imputed  to  the  British  trawlers  or  their  owners.  On  the 
contrary,  apart  from  the  error  of  the  attack,  those  on  board  the 
Russian  fleet  had  aggravated  the  seriousness  of  the  incident  by 
failure  to  render  assistance  to  the  injured  fishermen. 

The  Russian  case  met  these  contentions  by  an  elaboration  in  de- 
tail of  the  original  explanation  given  by  Admiral  Rozhdestvensky. 
In  consequence  of  reliable  intelligence  received  as  to  the  plans  for 
Japanese  attacks  in  European  waters,  certain  dispositions  had  been 
taken  to  insure  the  safety  of  the  Russian  fleet  in  its  passage  through 
the  North  Sea.  Emphasis  was  laid  on  the  fact  that  the  Russian 
torpedo-craft  had  been  sent  on  ahead  in  two  sections,  thus  making 
impossible  the  presence  of  a  Russian  torpedo-boat  among  the 
trawlers  on  the  night  of  the  attack.  But  that  other  torpedo-boats 
—  presumably  Japanese  —  had  been  present  was  supported  by 
evidence  that  admitted  of  no  doubt.  "At  55  minutes  past  mid- 
night," the  Russian  case  went  on  to  say,  "in  latitude  55°  18'  north 
and  longitude  5°  42'  east  of  Greenwich,  the  first  ship  of  the  last 
section,  the  admiral's  ship,  Kniaz  Savaroff,  perceived  ahead  the 
outlines  of  two  small  craft  approaching  at  great  speed,  all  their 
lights  out,  towards  the  armor-clads.  The  whole  detachment  at 
once  began  to  work  their  electric  searchlights,  and  as  soon  as  the 
two  suspicious  craft  came  within  the  zone  of  the  rays  projected 
they  were  recognized  as  torpedo-boats.  The  armor-clads  directly 


104  COMMISSIONS  OF  INQUIRY 

opened  fire  on  them."  Immediately  afterwards,  the  searchlights 
revealed  the  fishing  boats,  some  of  them  lying  across  the  course 
the  fleet  was  taking.  All. precautions  were  taken  to  prevent  in- 
jury to  the  trawlers  by  reason  of  their  being  within  the  zone  of 
fire,  but  "nevertheless  the  very  distinct  feeling  of  danger  to  which 
the  armor-clads  were  exposed  and  the  imperious  duty  of  protecting 
them  against  the  attacks  of  the  torpedo-boats  necessitated  the  con- 
tinuance of  the  cannonade,  notwithstanding  the  evident  risk  of 
hitting  not  only  the  fishing  boats,  but  also  the  ships  of  the  squad- 
ron itself."  The  firing  had  ceased  on  the  disappearance  of  the 
torpedo-boats,  and  had  not  lasted  more  than  ten  minutes.  It 
was  military  necessity,  based  on  the  uncertainty  of  attack,  and 
not  indifference,  that  had  led  the  admiral  to  order  the  fleet  to  con- 
tinue on  its  course  without  stopping.  For  these  reasons,  according 
to  the  conclusion  drawn  by  the  Russian  case,  "Admiral  Rozhdest- 
vensky,  upon  whom  rested  the  heavy  responsibility  of  providing 
for  the  security  of  the  forces  entrusted  to  him  and  of  maintaining 
them  in  their  integrity,  had  not  only  the  right,  but  was  under  the 
absolute  obligation,  of  acting  as  he  did  —  that  is  to  say,  that  while 
clearly  aware  of  the  damage  he  might  cause  to  inoffensive  fisher- 
men, the  subjects  of  a  neutral  power,  he  was  nevertheless  obliged 
to  use  all  the  means  in  his  power  to  destroy  the  torpedo-boats 
which  had  attacked  his  squadron." 

In  its  report  the  commission,  after  a  careful  consideration  of  the 
facts,  "proceeded  to  give  an  analytic  statement  of  those  facts  in 
their  logical  order."  The  various  dispositions  made  on  the  voyage 
from  Reval  to  the  Dogger  Bank  were  set  forth  and  due  value  was 
attached  to  the  mental  factor  in  the  situation,  induced  by  the 
rumor  and  the  uncertainty  of  impending  attack.  The  dropping 
behind  of  a  transport,  due  to  a  damaged  engine,  and  a  message  from 
her  commander  that  he  was  attacked  on  all  sides  by  torpedo-boats 
(when  in  reality  he  had  met  a  Swedish  vessel  and  other  unknown 
ships)  were  considered  as  "perhaps  the  incidental  cause  of  the 
subsequent  events,"  for  they  had  served  to  confirm  previous  sus- 
picions and  to  create  a  nervous  vigilance  on  the  part  of  the  Russian 
commander.  There  was  nothing  unusual  in  the  appearance  of 
the  fishing  boats,  their  lights  were  set,  and  they  were  trawling  in 
accordance  with  customary  rules  and  prearranged  signals  from 


THE  DOGGER  BANK  INCIDENT  105 

rockets.  The  other  sections  of  the  Russian  fleet  had  passed  through 
the  fishing  ground  without  reporting  anything  suspicious,  even 
under  the  close  scrutiny  of  the  searchlights.  It  was  Admiral 
Rozhdestvensky's  flagship,  the  Savaroff,  that  first  took  alarm, 
the  immediate  cause  being  a  green  rocket  fired  by  the  "admiral" 
of  the  trawling  fleet,  "indicating  in  reality,  according  to  their 
conventions,  that  the  trawlers  were  to  trawl  on  the  starboard  to 
windward."  A  vessel  thereupon  appearing  at  "an  approximate 
distance  of  1 8  or  20  cables,"  and  suspicion  being  aroused  because 
they  saw  no  lights,  "the  men  of  the  watch  believed  they  detected 
a  torpedo-boat  going  at  high  speed,"  and  fire  was  immediately 
opened  upon  it.  With  respect  to  this  phase  of  the  incident,  the 
majority  of  the  commissioners  were  of  opinion  "that  the  responsi- 
bility for  the  act  and  the  results  of  the  cannonade  sustained  by  the 
fishing  fleet  rests  with  Admiral  Rozhdestvensky." 

As  to  the  justification  for  the  attack,  the  report  was  adverse  to 
the  Russian  contention,  as  follows:  "The  majority  of  the  commis- 
sioners declare  that  they  lack  precise  data  to  identify  the  objects 
upon  which  the  ships  fired,  but  the  commissioners  unanimously 
recognize  that  the  boats  of  the  flotilla  committed  no  hostile  act, 
and  the  majority  of  the  commissioners,  being  of  opinion  that  there 
was  no  torpedo-boat  either  among  the  trawlers  or  in  the  locality, 
the  fire  opened  by  Admiral  Rozhdestvensky  was  not  justifiable. 
The  Russian  Commissioner,  not  believing  himself  warranted  in 
concurring  hi  this  opinion,  states  his  conviction  that  it  is  precisely 
the  suspicious  vessels  that  approached  the  Russian  squadron  for 
a  hostile  purpose  that  provoked  the  firing."  The  report  then  goes 
on  to  suggest  that  perhaps  "the  real  objects  of  this  nocturnal 
firing"  were  some  warships  of  the  advance  sections  "delayed  on 
the  track  of  the  Savaroff  without  that  vessel  being  aware  of  it." 
The  commission  did  not  come  to  any  decisive  opinion  as  to  the 
duration  of  the  firing  on  the  port  side,  because  of  insufficient  in- 
formation, but  on  the  starboard  side,  "even  from  the  standpoint 
of  the  Russian  version,  it  seemed  to  have  been  longer  than  ap- 
peared necessary." 

In  its  concluding  statements  of  fact,  the  commissioners'  report 
acknowledged  that  Admiral  Rozhdestvensky  had  done  all  in  his 
power  "to  prevent  the  trawlers,  recognized  as  such,  from  being  the 


106  PROTESTS  AND  APOLOGIES 

objects  of  the  fire  of  the  squadron."  It  recognized,  too,  that  there 
was  sufficient  uncertainty,  from  his  point  of  view,  to  justify  con- 
tinuation of  his  voyage,  without  stopping  to  assist  the  trawlers. 
But  "at  the  same  time  the  majority  of  the  commissioners  regret 
that  it  did  not  occur  to  Admiral  Rozhdestvensky,  while  going 
through  the  Straits  of  Dover,  to  inform  the  authorities  of  the  neigh- 
boring maritime  powers  that,  having  been  compelled  to  open  fire 
in  the  vicinity  of  a  fleet  of  trawlers,  those  boats  of  unknown  na- 
tionality were  in  need  of  assistance."  In  conclusion,  the  commis- 
sioners went  on  record  as  in  no  manner  reflecting  upon  either  the 
valor  or  the  humane  sentiments  of  Admiral  Rozhdestvensky  or  of 
the  personnel  of  his  squadron. 

The  report  was  accepted  in  good  faith  by  both  governments  and 
the  incident  was  closed  with  the  payment  by  Russia  of  an  indem- 
nity of  £65,0x30. 

(British  and  Foreign  State  Papers,  vol.  xcvn,  pp.  77-79;  vol. 
xcrx,  pp.  921-26;  Archives  Diplomatiques  [1905],  vol.  xcm,  pp. 
97-113;  vol.  xcrv,  pp.  450-95;  Parliamentary  Papers  [1905],  (60) 
Russia,  Nos.  2  and  3;  London  Times,  October,  i9O4~February, 
1905,  passim.) 


§  12.  PROTESTS  AND  APOLOGEES 


WHEN  one  government  considers  that  by  the  action  of  another 
its  rights  have  been  seriously  violated,  it  is  customary  to  lodge 
a  formal  written  protest  against  the  action  complained  of.  This 
serves  as  a  notice  that  the  injured  state  intends  to  employ  what- 
ever means  seem  appropriate  and  expedient  to  secure  the  recogni- 
tion of  its  rights  under  international  law.  According  to  the  cir- 
cumstances the  discussion  may  be  continued  or  dropped  until 
such  time  as  the  complaining  state  finds  a  favorable  oppor- 
tunity for  urging  its  claim.  Certain  cases  are  settled  by  reference 
to  arbitration.  Not  infrequently  governments  have  tendered  full 
and  honorable  apologies.  Where  the  governments  have  not  been 
able  or  willing  to  employ  some  one  of  the  various  methods  for 
the  peaceful  settlement  of  international  differences  discussed  in 


THE  CASE  OF  THE  SUCHET  107 

this  and  the  preceding  section,  there  remains  only  recourse  to  some 
means  of  constraint,  unless  the  weakness  or  magnanimity  of  the 
injured  state  counsels  it  to  allow  the  matter  to  drop. 


§  13.   COERCIVE  MEASURES   SHORT  OF  WAR 
(a)  Retorsion 


LEGISLATIVE  RETORSION  AGAINST  BRITISH 
VESSELS  (1818) 

AN  act  of  April  18,  1818,  makes  the  following  provision  in  regard 
to  British  vessels: 

"Be  it  enacted  by  the  Senate  and  House  of  Representatives  of 
the  United  States  of  America,  in  Congress  assembled,  that  from 
and  after  the  thirtieth  of  September  next,  the  ports  of  the  United 
States  shall  be  and  remain  closed  against  every  vessel  owned  wholly 
or  in  part  by  a  subject  or  subjects  of  his  Britannic  majesty,  com- 
ing or  arriving  from  any  port  or  place  in  a  colony  or  territory  of 
his  Britannic  majesty  that  is  or  shall  be,  by  the  ordinary  laws  of 
navigation  and  trade,  closed  against  vessels  owned  by  citizens  of 
the  United  States; .  .  .  and  every  such  vessel,  so  excluded  from  the 
ports  of  the  United  States,  that  shall  enter,  or  attempt  to  enter, 
the  same,  in  violation  of  this  act,  shall,  with  her  tackle,  apparel, 
and  furniture,  together  with  her  cargo  on  board  such  vessel,  be 
forfeited  to  the  United  States."  (U.  S.  Statutes  at  Large,  vol.  m, 
P.  432.)  

(6)  Reprisals 
(See  the  Case  of  the  Forte,  p.  38.) 


(c)  Threats  and  the  display  of  force 


THE  CASE  OF  THE  SUCHET  (1902) 

IN  the  month  of  June,  1902,  while  the  French  Cruiser  Suchet  was 
temporarily  engaged  in  carrying  relief  to  Martinique  (which  had 


108  COERCIVE  MEASURES  SHORT  OF  WAR 

just  been  overwhelmed  by  a  terrible  volcanic  eruption),  the  pro- 
tection of  French  interests  in  Venezuela  was  entrusted  to  the 
German  sloop-of-war  Falke.  The  Falke  informed  the  Suchet,  on 
her  return  to  Carupano,  that  the  Venezuelan  Government  had 
arrested  seven  French  merchants  with  the  object  of  forcing 
them  to  pay  for  a  second  time  some  customs  duties  which  they 
had  already  paid  to  the  revolutionists  while  the  latter  were  in 
conflict  with  the  government. 

The  commander  of  the  Suchet  demanded  that  the  merchants 
be  released,  but  this  was  refused.  Thereupon,  observing  that 
the  Venezuelan  gunboat  Restaurador  was  about  to  leave  the  har- 
bor, the  commander  of  the  Suchet  ordered  it  to  stand  by,  and 
sent  an  officer  to  her  captain  to  advise  the  government  to  liberate 
the  prisoners.  All  this  time  the  Venezuelan  gunboat  was  com- 
manded by  the  guns  of  the  Suchet.  The  captain  of  the  Restau- 
rador protested  to  his  government  against  the  violence  to  which 
he  was  subjected  and  asked  instructions  from  President  Castro, 
but  received  no  reply.  An  hour  later  the  seven  Frenchmen 
were  released. 

(Translation :  Revue  Generate  de  Droit  International  Public  [1902], 
vol.  rx,  p.  628.) 


(d)  Withdrawal  of  diplomatic  representatives 


THE  UNITED   STATES  AND  VENEZUELA   (1908) 

AFTER  presenting  several  notes  in  which  claims  against  Vene- 
zuela were  urgently  pressed  and  a  reference  to  arbitration  was 
demanded,  Minister  Russell  in  a  dispatch  of  February  29,  1908, 
made  the  following  report  to  the  Secretary  of  State: 

"AMERICAN  LEGATION, 
"Willemstad  (February  29). 
"  (Received  Mar.  3,  1908  —  1.40  p.  m. 

"The  Venezuelan  Government  answered  to-day  my  note,  sent 
in  accordance  with  your  cable  instructions  i9th. 
"  Minister  for  Foreign  Affairs  states  that  Venezuela  refrains  from 


THE  UNITED  STATES  AND  VENEZUELA  109 

considering  for  the  present  the  question  of  arbitration,  because  I 
have  not  as  yet  refuted  the  arguments  in  notes  July  9  and  Septem- 
ber 20,  in  which  notes  Venezuela  plainly  stated  grounds  for  refus- 
ing to  arbitrate.  Note  concludes  as  follows: 

"'Consequently,  as  the  cases  referred  to  cannot  be  consid- 
ered as  being  comprised  among  those  which  call  for  diplomatic 
action,  the  Government  of  Venezuela  would  view  it  with 
satisfaction  if  the  Government  of  the  United  States  would 
consider  this  question  as  closed,  the  parties  interested  always 
having  the  right  of  recourse  to  the  tribunals  of  justice  of  the 
Republic  should  they  deem  fit.' 

"RUSSELL." 

Acting  under  instructions  received  from  Secretary  Root,  Charge 
Sleeper  presented  to  the  Venezuelan  Minister  for  Foreign  Affairs 
the  following  note: 

"AMERICAN  LEGATION, 
"  Caracas,  June  20,  1908. 

"Mr.  Minister:  Acting  under  instructions  from  my  government, 
it  devolves  upon  me  to  inform  your  excellency  that  in  view  of  the 
persistent  refusal  of  the  present  Government  of  Venezuela  to  give 
redress  for  the  governmental  action  by  which  all  American  interests 
in  this  country  have  been  destroyed  or  confiscated,  or  to  submit  the 
claims  of  American  citizens  for  such  redress  to  arbitration,  and  in 
view  of  the  tone  and  character  of  the  communications  received 
from  the  Venezuelan  Government,  the  Government  of  the  United 
States  is  forced  to  the  conclusion  that  the  further  presence  in  Cara- 
cas of  diplomatic  representatives  of  the  United  States  subserves  no 
useful  purpose  and  has  determined  to  close  its  legation  in  this 
capital  and  to  place  its  interests,  property,  and  archives  in  Vene- 
zuela in  the  hands  of  the  representative  of  Brazil,  which  country 
has  kindly  consented  to  take  charge  thereof. 

"Pursuant  to  the  aforesaid  instructions  I  shall  intrust  the  ar- 
chives and  property  of  the  legation  to  the  care  of  Mr.  Luis  de 
Lorena  Ferreira,  and  shall  proceed  to  Puerto  Cabello  and  embark 
on  the  U.S.S.  Marietta,  which  should  arrive  at  the  said  port  at 
any  moment. 

"I  therefore  respectfully  apply  for  my  passports,  and  request 


1 10  COERCIVE  MEASURES  SHORT  OF  WAR 

that  I  be  given  safe  conduct  to  my  port  of  departure  and  until  em- 
barkation on  the  Marietta. 
"I  avail,  etc.,  JACOB  SLEEPER." 

To  this  note  the  Venezuelan  Government  made  the  following 
reply: 

"UNITED  STATES  OF  VENEZUELA, 
"MINISTER  OF  FOREIGN  AFFAIRS, 

"Caracas,  June  20,  1908. 

"Sir:  If  the  grounds  which  you  set  forth  in  your  note  of  this 
date  are  those  on  which  President  Roosevelt  persists  in  seeking 
reparation  for  American  interests  or  individuals,  which  are  want- 
ing in  all  reason  and  right;  if  this  persistence  arrives  at  the  point 
of  wishing  that  matters  again  be  submitted  to  arbitration,  which 
upon  the  request  of  the  United  States  Government  were  already 
definitely  decided  by  a  tribunal  of  arbiters,  wherein  said  govern- 
ment was  duly  represented,  a  pretension  which  is  equivalent  to 
contradicting  itself  and  protesting  against  its  own  acts;  and  if, 
lastly,  the  tone  and  character  of  our  clear  and  precise  arguments 
have  not  been  pleasing  to  President  Roosevelt,  it  is  not  in  any  way 
the  fault  of  the  Venezuelan  Government  if,  obliged  to  fulfill  its 
duty,  it  does  not  permit  that  there  be  taken  away  and  impaired 
the  rights  of  the  nation,  free,  independent,  and  sovereign.  This 
attitude  can  be  a  motive  of  congratulation  for  governments  truly 
friendly  with  Venezuela,  because  therein  are  joined  the  rights  and 
prerogatives  of  a  whole  continent. 

"It  was  upon  these  very  worthy  considerations  that  the  Govern- 
ment of  Venezuela,  in  its  note  of  February  29  of  the  present  year, 
informed  the  American  Minister,  hi  reply  to  his  communication  of 
the  22d  of  the  same  month,  that  his  government  not  having  pre- 
sented any  argument  which  would  make  its  opinion  prevail,  and 
the  case  not  being  one  calling  for  diplomatic  action,  the  Govern- 
ment of  Venezuela  would  view  it  with  satisfaction  if  President 
Roosevelt  would  desist  from  his  contentions  in  order  that  the  Amer- 
ican claimants  should  appeal  to  the  tribunals  of  the  Republic  with 
the  submission  they  owe  to  its  laws  to  defend  the  rights  which  they 
might  consider  injured,  since  those  laws,  to  which  every  foreigner 
in  the  country  is  subjected,  are  not  to  be  broken,  thereby  permit- 


THE  UNITED  STATES  AND  VENUEZELA  III 

ting  that  there  be  substituted  for  this  legal  procedure,  per  saltum, 
a  diplomatic  action. 

"All  this  is  to  be  regretted  on  account  of  the  hereinbefore-men- 
tioned reasons. 

"To-day  it  is  the  turn  of  the  people  of  each  country  to  judge  of 
what  has  happened,  in  the  light  of  reason  and  impartial  justice, 
and  from  what  their  mutual  interests  and  advantages  advise,  and 
later  of  the  sovereign  bodies,  representatives  of  those  peoples, 
upon  whom  it  devolves  in  each  country  to  take  cognizance  of  and 
decide  the  case  in  the  last  resort. 

"As  it  is  your  honor's  government  which  has  placed  an  end  to 
your  diplomatic  functions  in  this  country  and  as  the  Government 
of  Venezuela  has  no  cause  for  complaint  respecting  you  personally, 
this  Government  will  preserve  you  in  the  enjoyment  of  your  diplo- 
matic immunities  and  prerogatives  until  your  embarkation  in 
Puerto  Cabello  on  the  steamer  Marietta.  Not  only  for  the  reason 
above  mentioned,  that  it  is  not  the  Government  of  Venezuela 
which  bids  you  leave,  but  also  as  our  actual  situation  with  the 
United  States  is  not  that  of  war,  in  which  case  it  would  be  proper 
to  issue  a  safe-conduct  to  the  diplomatic  agent  crossing  the  terri- 
tory, my  government  does  not  consider  it  necessary  or  fitting  to 
send  it  to  you  for  your  journey  to  Puerto  Cabello,  passing  as  you 
do  through  civilized  and  cultured  towns  which  know  how  to  respect 
those  prerogatives  and  immunities.  I  take  this  occasion  to  remind 
your  honor  that  important  members  of  the  American  Legation 
and  tourists  come  to  this  country  for  scientific  purposes,  and 
recommended  to  the  aforesaid  legation,  have  traveled  over  a  great 
part  of  the  territory  of  the  Republic,  manifesting  their  satisfaction 
to  all  the  authorities  along  the  way  for  the  attentions,  facilities, 
and  personal  security  of  which  they  were  the  object ;  and  it  would 
be  very  laudable  on  your  part  on  your  arrival  in  the  United  States 
to  so  inform  your  government,  so  that,  as  a  tribute  to  truth,  the 
American  people  may  know  how  foreigners  are  treated  and  con- 
sidered in  Venezuela  who,  by  their  loyal  and  correct  conduct, 
make  themselves  worthy  of  esteem. 

"My  government  has  made  a  note  of  the  fact  that,  by  orders 
of  your  government,  the  interests,  property,  and  archives  of  the 
legation  in  Caracas  have  been  placed  in  the  hands  of  the  Brazilian 
Charg6  d'Affaires. 


112  COERCIVE  MEASURES  SHORT  OF  WAR 

"I  close  by  expressing  to  you,  in  the  name  of  my  government, 
the  most  cordial  wishes  for  your  pleasant  journey,  and  I  avail 
myself  of  the  opportunity  to  renew  to  you  the  assurances  of  my 
distinguished  consideration. 

"  J.  DE  J.  PAUL." 

Thereupon  Charge  Sleeper  placed  in  the  hands  of  the  Brazilian 
representative  the  interests,  property,  and  archives  of  the  Ameri- 
can Legation  and  made  the  following  notification  to  the  American 
Consuls  in  Venezuela: 

"AMERICAN  LEGATION, 
"  Caracas,  June  20,  1908. 

"Sir:  I  have  the  honor  to  inform  you  that  the  Government  of  the 
United  States  has  decided  to  close  its  legation  in  Caracas  and  to 
place  its  interests,  property,  and  archives  in  Venezuela  in  the  hands 
of  the  representative  of  Brazil. 

"Matters  of  a  nature  calling  for  diplomatic  intervention  should 
be  referred  therefore  to  the  Brazilian  Minister  here,  Mr.  Luiz  de 
Lorena  Ferreira. 

"No  instructions  have  been  received  varying  the  position  or  ac- 
tion of  consuls. 

"Very  respectfully,  JACOB  SLEEPER." 

(Extracted  and  condensed  from  Foreign  Relations  of  the  United 
States,  1908,  pp.  774-830.) 


(e)  Collective  intervention 


COLLECTIVE    INTERVENTION   OF   THE    POWERS   IN 
CHINA   (1900-01) 

AFTER  the  Allies  had  rescued  the  legations  at  Peking,  and  had 
once  more  established  order,  on  December  22,  1900,  the  diplo- 
matic representatives  of  the  powers  at  Peking  addressed  to  the 
Chinese  Government  the  following  joint  note: 

"During  the  months  of  May,  June,  July,  and  August  of  the 
present  year,  serious  disturbances  broke  out  in  the  northern  prov- 


INTERVENTION  OF  THE  POWERS  IN  CHINA  113 

inces  of  China,  and  crimes  unprecedented  in  human  history, 
crimes  against  the  law  of  nations,  against  the  laws  of  humanity 
and  against  civilization,  were  committed  under  peculiarly  odious 
circumstances.  The  principal  of  these  crimes  were  the  following: 

"i.  On  the  2oth  of  June,  His  Excellency  Baron  von  Ketteler, 
German  Minister,  proceeding  to  the  Tsung-li  Yamen,  was  mur- 
dered while  in  the  exercise  of  his  official  duties  by  soldiers  of  the 
regular  army  acting  under  orders  of  their  chiefs. 

"2.  The  same  day  the  foreign  legations  were  attacked  and  be- 
sieged. These  attacks  continued  without  intermission  until  the 
i4th  of  August,  on  which  date  the  arrival  of  foreign  troops  put  an 
end  to  them.  These  attacks  were  made  by  regular  troops  who  joined 
the  Boxers  and  who  obeyed  orders  of  the  court,  emanating  from 
the  Imperial  Palace.  At  the  same  time  the  Chinese  Government 
officially  declared  by  its  representatives  abroad  that  it  guaranteed 
the  security  of  the  legations. 

"3.  The  nth  of  June,  Mr.  Sugiyama,  chancellor  of  the  legation 
of  Japan,  in  the  discharge  of  an  official  mission,  was  killed  by  reg- 
ulars at  the  gates  of  the  city.  At  Peking  and  in  several  provinces 
foreigners  were  murdered,  tortured,  or  attacked  by  Boxers  and 
regular  troops,  and  only  owed  their  safety  to  their  determined  re- 
sistance. Their  establishments  were  pillaged  and  destroyed. 

"4.  Foreign  cemeteries,  at  Peking  especially,  were  desecrated, 
the  graves  opened,  the  remains  scattered  abroad. 

"These  events  led  the  foreign  powers  to  send  their  troops  to 
China  in  order  to  protect  the  lives  of  their  representatives  and 
their  nationals,  and  to  restore  order.  During  their  march  to  Peking 
the  allied  forces  met  with  the  resistance  of  the  Chinese  armies, 
and  had  to  overcome  it  by  force.  China  having  recognized  her  re- 
sponsibility, expressed  her  regrets,  and  manifested  the  desire  to 
see  an  end  put  to  the  situation  created  by  the  disturbances  re- 
ferred to,  the  powers  have  decided  to  accede  to  her  request  on  the 
irrevocable  conditions  enumerated  below,  which  they  deem  indis- 
pensable to  expiate  the  crimes  committed  and  to  prevent  their 
recurrence: 

"I.  (A)  Dispatch  to  Berlin  of  an  extraordinary  mission,  headed 
by  an  Imperial  Prince,  to  express  the  regrets  of  His  Majesty  the 
Emperor  of  China  and  of  the  Chinese  Government,  for  the 


114  COERCIVE  MEASURES  SHORT  OF  WAR 

murder  of  His  Excellency,  the  late  Baron  von  Ketteler,  German 
Minister. 

"  (B)  Erection  on  the  place  where  the  murder  was  committed 
of  a  commemorative  monument  suitable  to  the  rank  of  the  de- 
ceased, bearing  an  inscription  in  the  Latin,  German,  and  Chinese 
languages,  expressing  the  regrets  of  the  Emperor  of  China  for  the 
murder. 

"II.  (A)  The  severest  punishment  in  proportion  to  their  crimes 
for  the  persons  designated  in  the  Imperial  decree  of  September  25, 
1900,  and  for  those  whom  the  representatives  of  the  powers  shall 
subsequently  designate. 

"  (B)  Suspension  of  all  official  examinations  for  five  years  in  all 
the  towns  where  foreigners  have  been  massacred  or  have  been  sub- 
jected to  cruel  treatment. 

"III.  Honorable  reparation  shall  be  made  by  the  Chinese  Gov- 
ernment to  the  Japanese  Government  for  the  murder  of  Mr. 
Sugiyama,  chancellor  of  the  Japanese  Legation. 

"IV.  An  expiatory  monument  shall  be  erected  by  the  Imperial 
Chinese  Government  in  each  of  the  foreign  or  international  ceme- 
teries which  have  been  desecrated,  and  in  which  the  graves  have 
been  destroyed. 

"V.  Maintenance,  under  conditions  to  be  settled  between  the 
powers,  of  the  prohibition  of  the  importation  of  arms,  as  well  as 
of  material  used  exclusively  for  the  manufacturing  of  arms  and 
ammunition. 

"VI.  Equitable  indemnities  for  governments,  societies,  com- 
panies, and  private  individuals,  as  well  as  for  Chinese  who  have 
suffered  during  the  late  events  in  person  or  in  property  in  conse- 
quence of  their  being  in  the  service  of  foreigners.  China  shall  adopt 
financial  measures  acceptable  to  the  powers  for  the  purpose  of 
guaranteeing  the  payment  of  said  indemnities  and  the  interest 
and  amortization  of  the  loans. 

"VII.  Right  for  each  power  to  maintain  a  permanent  guard 
for  its  legation  and  to  put  the  legation  quarter  in  a  defensible 
condition.  Chinese  shall  not  have  the  right  to  reside  in  this 
quarter. 

"VIII.  The  Taku  and  other  forts  which  might  impede  free  com- 
munication between  Peking  and  the  sea  shall  be  razed. 


INTERVENTION  OF  THE  POWERS  IN  CHINA  115 

"IX.  Right  of  military  occupation  of  certain  points,  to  be  de- 
termined by  an  understanding  between  the  powers,  for  keeping 
open  communication  between  the  capital  and  the  sea. 

"X.  (A)  The  Chinese  Government  shall  cause  to  be  published 
during  two  years  in  all  subpref ectures  an  Imperial  decree  embody- 
ing— 

"Perpetual  prohibition,  under  pain  of  death,  of  membership  in 
any  anti-foreign  society. 

"Enumeration  of  the  punishments  which  shall  have  been  in- 
flicted on  the  guilty,  together  with  the  suspension  of  all  official 
examinations  hi  the  towns  where  foreigners  have  been  murdered 
or  have  been  subjected  to  cruel  treatment. 

"  (B)  An  Imperial  decree  shall  be  issued  and  published  every- 
where in  the  Empire,  declaring  that  all  governors-general,  gover- 
nors, and  provincial  or  local  officials  shall  be  responsible  for  order 
in  their  respective  jurisdictions,  and  that  whenever  fresh  anti- 
foreign  disturbances  or  any  other  treaty  infractions  occur,  which 
are  not  forthwith  suppressed  and  the  guilty  persons  punished,  they, 
the  said  officials,  shall  be  immediately  removed  and  forever  pro- 
hibited from  holding  any  office  or  honors. 

"XI.  The  Chinese  Government  will  [shall]  undertake  to  nego- 
tiate the  amendments  to  the  treaties  of  commerce  and  navigation 
considered  useful  by  the  powers  and  upon  other  subjects  con- 
nected with  commercial  relations  with  the  object  of  facilitating 
them. 

"XII.  The  Chinese  Government  shall  undertake  to  reform  the 
Office  of  Foreign  Affairs,  and  to  modify  the  court  ceremonial  rela- 
tive to  the  reception  of  foreign  representatives  in  the  manner 
which  the  powers  shall  indicate. 

"Until  the  Chinese  Government  have  complied  with  the  above 
to  the  satisfaction  of  the  powers,  the  undersigned  can  hold  out  no 
expectation  that  the  occupation  of  Peking  and  the  province  of 
Chihli  by  the  general  forces  can  be  brought  to  a  conclusion. 

"PEKING,  December  22, 1900. 

"For  Germany:  A.  Mr  MM. 

"For  Austria-Hungary:  M.  CZIKANN. 

"For  Belgium:  JOOSTENS. 


Il6  COERCIVE  MEASURES  SHORT  OF  WAR 

"For  Spain:  B.  F.  DE  COLOGAN. 
"For  United  States  of  America:  E.  H.  CONGER. 

"For  France:  S.  PICHON. 

"For  Great  Britain:  ERNEST  SATOW. 

"For  Italy:  SALVAGO  RAGGI. 

"For  Japan:  T.  NISSI. 

"For  Netherlands:  F.  M.  KNOBEL. 

"For  Russia:  MICHEL  DE  GIERS." 

The  Chinese  plenipotentiaries  designated  to  treat  with  the  rep- 
resentatives of  the  powers  replied  on  January  1 6,  1901,  as  follows: 

[Translation] 

"Under  date  of  December  24,  1900,  the  plenipotentiaries  of 
Germany,  Austria-Hungary,  Belgium,  Spain,  the  United  States, 
France,  Great  Britain,  Italy,  Japan,  the  Netherlands,  and  Russia, 
have  sent  us  the  following  note: 

[The  joint  note  is  here  quoted  textually  and  in  its  entirety.] 
"We  hastened  to  transmit  the  full  text  of  this  note  to  His  Maj- 
esty the  Emperor,  who,  having  taken  cognizance  of  it,  rendered 
the  following  decree: 

"'We  have  taken  cognizance  of  the  whole  of  the  telegram 
of  Yi  Kuang  [Prince  Ching]  and  Li  Hung-chang.  It  behooves 
us  to  accept,  in  their  entirety,  the  twelve  articles  which  they 
have  submitted  to  us.' 

"Consequently,  we,  Ching,  Prince  of  the  first  rank,  Plenipo- 
tentiary, President  of  the  Council  of  Foreign  Affairs,  and  Li,  Earl 
of  the  first  rank,  Su-yi,  Plenipotentiary,  Tutor  to  the  Heir  Ap- 
parent, Grand  Secretary  of  the  Wen-hua  Tien  Throne  Hall,  Min- 
ister of  Commerce,  Superintendent  of  trade  for  the  northern  ports, 
Governor-General  of  Chihli, 

"Declare  that  we  accept  in  their  entirety  the  twelve  articles 
which  we  have  been  requested  to  insure  the  transmission  of  to 
His  Majesty  the  Emperor. 

"In  witness  of  which  we  have  signed  the  present  protocol  and 
we  transmit  to  the  foreign  plenipotentiaries  a  copy  of  the  edict  of 
His  Majesty  the  Emperor,  bearing  the  imperial  seal. 


THE  RETURN  OF  THE  CHINESE  INDEMNITY          117 

"It  is  understood  that  in  case  of  disagreement  the  French  text 
shall  be  authoritative. 
"  PEKING,  16  January,  igoi. 

"  (Signed)  Yi  KUANG 

"(Prince  Ching). 
"[L.  S.]  Li." 

After  several  months  of  negotiation  in  regard  to  the  provisions 
for  the  carrying  out  of  the  terms  of  the  joint  note,  an  agreement 
was  at  last  reached  and  included  in  the  peace  protocol  signed  Sep- 
tember 7,  1901,  by  representatives  of  China  and  the  powers.  After 
the  completion  of  the  detailed  enumeration  of  the  conditions  im- 
posed upon  China,  the  peace  protocol  concludes  as  follows: 

"The  Chinese  Government  having  thus  complied  to  the  satis- 
faction of  the  powers  with  the  conditions  laid  down  hi  the  above- 
mentioned  note  on  December  22,  1900  [the  joint  note],  the  powers 
have  agreed  to  accede  to  the  wish  of  China  to  terminate  the  situ- 
ation created  by  the  disorders  of  the  summer  of  1900.  In  conse- 
quence thereof  the  foreign  plenipotentiaries  are  authorized  to  de- 
clare in  the  names  of  their  governments  that,  with  the  exception 
of  the  legation  guards  mentioned  in  article  vn,  the  international 
troops  will  completely  evacuate  the  city  of  Peking  on  the  lyth 
September,  1901 ,  and,  with  the  exception  of  the  localities  mentioned 
in  Article  DC,  will  withdraw  from  the  province  of  Chihli  on  the  22d 
of  September. 

"The  present  final  protocol  has  been  drawn  up  in  twelve  iden- 
tic copies  and  signed  by  all  the  plenipotentiaries  of  the  con- 
tracting countries.  One  copy  shall  be  given  to  each  of  the  foreign 
plenipotentiaries,  and  one  copy  shall  be  given  to  the  Chinese 
plenipotentiaries. ' ' 

(Foreign  Relations  of  the  United  States,  ipoo,  pp.  244-45; 
Clements:  The  Boxer  Rebellion  [New  York,  1915],  Appendix  n, 
in.) 


THE  RETURN  OF  THE  CHINESE   INDEMNITY  (1907) 

BY  article  6  of  the  peace  protocol  signed  September  7,  1901,  de- 
nning the  amount  and  method  of  payment  of  the  indemnity  re- 


Il8  COERCIVE  MEASURES  SHORT  OF  WAR 

quired  by  the  powers  of  China,  China  was  obligated  to  pay  the 
powers  an  indemnity  of  four  hundred  and  fifty  millions  of  Haikwan 
taels,  which  was  stated  to  represent  "the  total  amount  of  the  in- 
demnities for  states,  companies,  or  societies,  private  individuals, 
and  Chinese  referred  to  in  article  6  of  the  note  of  December  22, 
1900." 

On  June  15,  1907,  the  Secretary  of  State  addressed  the  following 
note  to  the  Chinese  Minister  at  Washington: 

11  Sir:  After  the  rescue  of  the  foreign  legations  in  Peking  during 
the  Boxer  troubles  of  1900,  the  note  of  the  powers  to  China  pre- 
scribing the  conditions  upon  which  the  occupation  of  Peking  and 
the  Province  of  Chihli  would  be  ended,  dated  December  22,  1900, 
required  in  its  sixth  article  the  payment  of  'equitable  indemnities 
for  governments,  societies,  companies,  and  private  individuals, 
as  well  as  for  Chinese  who  have  suffered  during  the  late  events  in 
person  or  in  property  in  consequence  of  their  being  in  the  service  of 
foreigners.' 

"The  final  protocol  under  which  the  troops  were  withdrawn, 
signed  at  Peking,  September  7,  1901,  fixed  the  amount  of  this  in- 
demnity at  450,000,000  Haikwan  taels,  equivalent  in  round 
numbers  to  $333,000,000  United  States  gold.  China  agreed  to 
pay  this  sum,  with  interest  at  4  per  cent  per  annum,  by  install- 
ments running  through  a  period  of  thirty-nine  years. 

"The  share  of  this  indemnity  allotted  to  the  United  States  was 
$24,440,778.81,  and  on  account  of  the  principal  and  interest  of 
that  sum  China  has  paid  to  the  United  States,  down  to  and  in- 
cluding the  ist  day  of  June,  1907,  the  sum  of  $6,010,931.91. 

"It  was  from  the  first  the  intention  of  this  government  at  the 
proper  time,  when  all  claims  should  have  been  presented  and  all 
expenses  should  have  been  ascertained  as  fully  as  possible,  to  revise 
the  estimate  and  account  against  which  these  payments  were  to 
be  made,  and,  as  proof  of  sincere  friendship  for  China,  to  volun- 
tarily release  that  country  from  its  legal  liability  for  all  payments 
in  excess  of  the  sum  which  should  prove  to  be  necessary  for  actual 
indemnity  to  the  United  States  and  its  citizens. 

"Such  a  revision  has  now  been  made  by  the  different  executive 
departments  concerned,  and  I  am  authorized  by  the  President  to 
say  that,  in  pursuance  of  that  revision,  at  the  next  session  of  the 


THE  BOMBARDMENT  OF  GREYTOWN  119 

Congress  he  will  ask  for  authority  to  reform  the  agreement  with 
China  under  which  the  indemnity  is  fixed  by  remitting  and  can- 
celing the  obligation  of  China  for  the  payment  of  all  that  part  of 
the  stipulated  indemnity  which  is  in  excess  of  the  sum  of  $11,655,- 
492.69  and  interest  at  the  stipulated  rate. 

"Accept,  Mr.  Minister,  etc.,  ELTHU  ROOT." 

The  Chinese  Minister  in  acknowledgment  expressed  the  grate- 
ful thanks  of  his  government  "for  this  signal  act  of  generosity 
shown  by  the  United  States  toward  China,  which  cannot  fail  to 
bind  the  two  countries  into  closer  and  more  friendly  relations,  and 
which  affords  another  conspicuous  proof  of  the  high  sense  of  jus- 
tice that  has  always  actuated  the  Government  of  the  United 
States  in  its  intercourse  with  China." 

On  June  27,  the  Chinese  Minister  at  Washington  handed  to  the 
President  personally  a  copy  of  the  following  telegram  received 
from  the  Wai-wu  Pu:  "Your  telegraphic  report  on  the  remission 
of  the  indemnity  having  been  laid  before  the  Emperor,  you  are 
commanded  to  convey  to  the  President  of  the  United  States  His 
Majesty's  warm  thanks  for  this  noble  exhibition  of  his  friendship 
toward  China,  which  is  deeply  and  gratefully  appreciated,  by 
having  alone  taken  the  lead  hi  a  matter  of  international  justice." 

(Foreign  Relations  of  the  United  States,  1907,  pp.  174-76; 
Clements:  Tlie  Boxer  Rebellion,  Appendix  in.) 


(/)  "Use  of  force 


THE  BOMBARDMENT  OF  GREYTOWN  (1854) 

GREYTOWN,  a  community  then  lying  outside  the  acknowledged 
boundaries  of  Nicaragua,  in  what  was  known  as  the  Mosquito 
Coast,  maintained  an  independent  existence  under  the  authority  of 
the  Mosquito  King,  who  was  understood  to  enjoy  the  patronage 
of  the  British  Government.  As  the  result  of  a  controversy  with 
Nicaragua  concerning  limits,  which  involved  the  question  of  juris- 
diction over  Punta  Arenas,  property  belonging  to  the  Accessory 
Transit  Company,  an  organization  of  American  citizens  holding 


120  COERCIVE  MEASURES  SHORT  OF  WAR 

a  charter  from  Nicaragua,  was  on  various  occasions  seized  or  de- 
stroyed at  that  point  by  the  Greytown  authorities,  and  for  these 
acts  damages  were  demanded.  There  was,  however,  another  com- 
plaint which  was  supposed  to  affect  the  "dignity"  of  the  United 
States.  At  that  time  the  United  States  was  represented  in  Central 
America  by  a  minister  named  Solon  Borland,  from  Arkansas,  a 
man  of  spirit  who  had  served  in  the  Mexican  War.  One  day  the 
Greytown  authorities  attempted  to  arrest  the  captain  of  an  Ac- 
cessory Transit  steamer,  then  lying  at  Punta  Arenas,  when  Mr. 
Borland  happened  to  be  aboard.  The  captain  resisted,  and,  in  the 
scrimmage  that  ensued,  Mr.  Borland  seized  a  musket  and  gave  to 
the  captain  successful  support.  Great  excitement  ensued  at  Grey- 
town;  and  it  was  presently  fanned  to  a  flame  by  the  announcement 
that  Mr.  Borland  intended  to  call  upon  the  resident  United  States 
commercial  agent  in  the  evening.  A  suggestion  from  the  latter 
that  this  visit  be  considerately  omitted,  Mr.  Borland,  his  blood 
still  up,  scornfully  rejected;  and,  while  he  was  in  the  agent's  house, 
a  violent  commotion  in  the  street  denoted  the  presence  of  a  mob. 
Mr.  Borland,  nothing  daunted,  promptly  appeared  in  the  gallery 
and  warned  the  tumultuous  assemblage  to  disperse.  But  his  ora- 
tory was  suddenly  checked  by  a  blow  in  the  face  from  a  bottle, 
thrown  by  some  one  in  the  crowd,  who,  after  draining  from  the 
flask  the  last  inspiring  drop,  used  it  as  a  missile.  For  the  redress 
of  these  accumulated  grievances  Captain  Hollins,  of  the  U.S.S. 
Cyane,  was  dispatched  to  Greytown.  Lacking  specific  instructions 
as  to  procedure,  he  made  upon  the  local  community  demands  which 
it  was  either  unwilling,  or  unable,  or  without  adequate  oppor- 
tunity to  meet,  and,  the  time  limit  having  expired,  first  bom- 
barded and  then  burned  the  town,  utterly  destroying  it.  This 
somewhat  fierce  and  drastic  punitive  measure  created  a  sensation 
throughout  the  civilized  world.  I  have  in  my  collections  a  pam- 
phlet on  the  case,  published  in  France,  on  the  cover  of  which  is 
an  arm  uplifted  hi  vengeance  and  bearing  an  incendiary  torch. 

At  the  time  when  Greytown  was  destroyed,  numerous  foreigners 
were  residing  there,  including  some  of  British  and  some  of  French 
allegiance.  Claims  in  behalf  of  the  latter  were  promptly  presented 
to  the  United  States  by  the  French  Government  on  the  ground  that 
the  destruction  of  the  place  was  unlawful  and  unjustified.  Marcy, 


THE  CAROLINE  ANDsTHE  McLEOD  CASES  121 

in  his  response,  maintained  that,  as  the  claimants  had  settled  in 
Greytown,  they  must  be  regarded  as  having  committed  them- 
selves to  its  protection,  so  that,  for  any  injuries  they  had  suffered, 
they  must  look  for  redress  to  that  community,  and  not  to  the 
United  States  or  to  any  other  country  with  which  the  local  govern- 
ment had  happened  to  fall  into  difficulty.  The  argument  was  mar- 
shaled with  such  crushing  force  that  Lord  Palmerston  announced 
in  Parliament  that  Great  Britain  would  not  present  the  claims  of 
her  subjects  to  the  United  States.  The  French  claims  were  aban- 
doned. I  have  reason  to  believe  that  Marcy  himself  considered 
his  note  in  this  case  to  be  on  the  whole  the  most  finished  of  all 
his  diplomatic  papers. 

(Extract  from  article  by   J.  B.  Moore  in  Political   Science 
Quarterly,  vol.  xxx  [1915],  pp.  390-92.) 


§  14.   SELF-HELP 

THE  CAROLINE  AND  THE    McLEOD   CASES   (1837-42) 

IN  1837  there  occurred  in  Canada  a  rebellion  which  for  a  time 
endangered  the  good  neighborhood  of  the  border.  Some  of  the 
defeated  rebels  fled  to  the  United  States,  where  they  continued 
to  promote  their  cause  by  appealing  to  American  sympathy  and 
enlisting  recruits.  In  spite  of  measures  taken  by  the  officials  of  the 
United  States  to  prevent  violation  of  the  neutrality  laws,  an  ex- 
pedition organized  at  Buffalo  crossed  the  Niagara  River  and  en- 
camped at  Navy  Island  on  the  Canadian  side.  Communication 
with  the  United  States  was  maintained  by  the  Caroline,  a  small 
steamer  in  the  employ  of  the  insurrectionists,  and  their  numbers 
grew  until,  toward  the  end  of  December,  1837,  there  were  re- 
ported to  be  a  thousand  men.  On  the  29th  of  December  the  Caro- 
line, after  making  several  trips  to  Navy  Island,  moored  for  the 
night  at  Schlosser,  New  York.  At  midnight,  a  body  of  armed 
men,  about  eighty  in  number,  boarded  the  steamer,  attacked  the 
"passengers"  and  crew,  set  her  on  fire  and  sent  her  over  Niagara 
Falls.  In  the  course  of  the  attack,  one  of  the  persons  on  board,  an 
American  citizen,  was  killed. 


122  SELF-HELP 

As  soon  as  he  was  informed  of  the  incident,  Mr.  Forsyth,  Sec- 
retary of  State,  made  diplomatic  representation  in  a  note  to  the 
British  Minister  at  Washington,  who,  in  a  communication  of 
February  6,  acknowledged  that  the  force  which  had  destroyed 
the  Caroline  had  acted  under  the  instructions  of  the  British  au- 
thorities in  Canada,  but  justified  its  action  on  the  ground  that 
there  was  no  serious  attempt  to  enforce  neutrality  on  the  border 
and  that  the  destruction  of  the  steamer  was,  in  the  strictest  sense, 
an  act  of  self-defense.  The  Government  of  the  United  States  fol- 
lowed up  its  protest  with  a  demand  for  reparation,  which  Lord 
Palmerston  promised  to  consider;  Nothing  further  was  done, 
however,  for  over  two  years,  until  the  arrest  in  New  York  State 
of  one,  McLeod,  charged  with  murder  as  one  of  the  participants 
in  the  Caroline  affair,  brought  the  matter  to  an  issue.  Lord  Pal- 
merston, admitting  the  responsibility  of  the  British  Government, 
maintained  that  the  circumstances  conformed  fully  to  the  con- 
ditions as  laid  down  by  Mr.  Webster  in  his  note  to  the  British 
Minister,  namely,  that  there  had  been  "a  necessity  of  self-defense, 
instant,  overwhehning,  leaving  no  choice  of  means,  and  no  mo- 
ment for  deliberation,"  and  that  the  act  was  "limited  by  that 
necessity  and  kept  clearly  within  it."  1  The  Government  of  the 
United  States,  on  the  contrary,  while  admitting  that  necessity  of 
self-defense  justifies  exceptional  measures,  refused  to  admit  that 
such  necessity  had  been  present  in  the  Caroline  affair.  It  was  with 
this  difference  of  opinion  still  subsisting  that  the  negotiators  of 
the  Webster-Ashburton  Treaty  agreed  to  drop  all  further  con- 
sideration of  the  case,  Lord  Ashburton  expressing  regret  that 
there  had  been  "in  the  hurried  execution  of  the  necessary  service 
a  violation  of  territory,"  Mr.  Webster  at  the  same  time  giving 
assurances  that  the  President  would  make  the  subject,  "as  a 
complaint  of  violation  of  territory,  the  topic  of  no  further  discus- 
sion between  the  two  governments." 

The  McLeod  case  grew  out  of  the  Caroline  affair,  as  has  been 
stated  above,  and  involved  the  important  question  of  responsi- 
bility for  acts  of  state.  Alexander  McLeod,  a  British  subject  resi- 
dent in  Canada,  was  arrested  in  November,  1840,  at  Lewiston,  in 

1  Mr.  Webster  to  Mr.  Fox,  British  Minister  at  Washington,  April  24,  1841. 
(Webster's  Works,  vol.  vi,  p.  261.) 


THE  CAROLINE  AND  THE  McLEOD  CASES  123 

the  State  of  New  York,  charged  with  the  murder  of  Amos  Durfee, 
who  lost  his  life  in  the  destruction  of  the  Caroline.  The  British 
Minister  at  Washington  at  once  avowed  the  attack  upon  the 
Caroline  as  a  national  act  for  which  no  person  acting  under  orders 
could  be  held  responsible;  it  was  "a  transaction  of  a  public  char- 
acter, planned  and  executed  by  persons  duly  empowered  by  Her 
Majesty's  colonial  authorities  to  take  any  steps  and  to  do  any  acts 
which  might  be  necessary  for  the  defense  of  Her  Majesty's  sub- 
jects, and  that  they  were  not  personally  and  individually  answer- 
able to  the  laws  and  tribunals  of  any  foreign  country."  Hence  it 
was  solely  a  matter  between  the  two  governments,  and  McLeod's 
release  was  requested.  Mr.  Webster,  on  this  presentation  of  the 
case,  promptly  admitted  that  the  adoption  of  the  act  as  its  own 
by  the  British  Government  removed  all  personal  liability;  "in- 
dividuals concerned  in  it  ought  not,  by  the  principles  of  public 
law  and  the  general  usage  of  civilized  states,  to  be  holden  per- 
sonally responsible  in  the  ordinary  tribunals  of  law  for  their  par- 
ticipation in  it."  But  the  Government  of  the  United  States  was 
unable  to  secure  his  immediate  release.  The  New  York  courts 
asserted  their  right  to  go  on  with  the  proceedings  and  McLeod 
came  up  in  due  time  for  trial,  but  was  acquitted  on  proof  of  an 
alibi. 

To  prevent  a  recurrence  of  this  conflict  of  authority,  Congress 
adopted  an  act,  August  29,  1842,  whereby  the  federal  courts  are 
empowered  to  have  jurisdiction  over  aliens  claiming  immunity 
for  acts  done  under  authority  of  their  state,  "the  validity  and 
effect  whereof  depend  upon  the  law  of  nations." 

It  may  be  added  that  McLeod  afterwards  made  his  arrest  and 
trial  the  subject  of  a  claim  against  the  United  States,  which  claim 
came  before  the  commission  under  the  convention  of  February  8, 
1853.  It  was  rejected  by  the  umpire  on  the  ground  of  resjudicata, 
the  whole  question  having  been  finally  settled  by  Webster  and 
Ashburton  in  1842. 

(Messages  and  Executive  Documents  [1838-43],  passim;  Moore: 
Digest  of  International  Law,  vol.  n,  pp.  409-14;  Moore:  Inter- 
national  Arbitrations,  vol.  m,  pp.  2419-28;  The  Works  of  Daniel 
Webster,  vol.  v,  pp.  116-39;  vol.  vi,  pp.  247-69,  292-303.) 


124  SELF-HELP 

AMERICAN  NAVAL  OFFICERS  SENT  TO  AID 
MISSIONARIES  IN  TURKEY  (1895) 

EARLY  in  1895  reports  were  received  that  American  missionaries 
at  Marash,  Hadjin,  Aintab,  and  Orfa  apprehended  a  massacre, 
and  that  a  hostile  feeling  toward  them  existed  at  Erzerum,  Van, 
and  Bitlis.  On  the  demand  of  the  legation  of  the  United  States  at 
Constantinople,  the  Porte,  while  denying  the  existence  of  the 
rumored  danger,  sent  telegraphic  orders  to  the  civil  and  military 
functionaries  in  Asia  Minor,  enjoining  upon  them  the  protection 
of  Americans  and  their  property.  Besides,  the  U.S.S.  Marblehead 
was  ordered  from  Gibraltar  to  Beirut,  and  the  U.S.S.  San  Fran- 
cisco, with  Rear-Admiral  Kirkland,  commander  in  chief  of  the 
European  station,  from  Palermo  to  Smyrna,  Alexandretta,  and 
Adana,  under  instructions  to  ascertain,  by  conference  with  the 
United  States  Consuls  and  resident  American  citizens  in  the 
places  mentioned,  what  foundation  existed  for  the  alarming  ap- 
prehensions expressed  in  regard  to  the  massacre  of  Christians  in 
Turkey,  and,  in  case  sufficient  ground  should  be  found  for  such 
anxiety,  to  intimate  to  the  responsible  authorities  of  the  Govern- 
ment of  Turkey  that  it  was  the  intention  of  the  United  States  to 
afford  full  protection  to  its  citizens  who  were  peaceably  residing 
in  that  part  of  the  world  under  the  guarantee  of  treaties.  The 
visit  of  the  ships  bore  a  friendly  character.  Admiral  Kirkland  re- 
ported that  no  information  could  be  obtained  of  any  outrages  on 
American  citizens,  and  that  his  reception  was  everywhere  most 
courteous. 

Mr.  Olney,  Secretary  of  State,  reported  to  the  President  De- 
cember 19,  1895: 

"The  number  of  citizens  of  the  United  States  resident  in  the 
Turkish  Empire  is  not  accurately  known.  According  to  latest 
advices,  there  are  172  American  missionaries,  dependents  of 
various  mission  boards  in  the  United  States,  scattered  over  Asia 
Minor.  There  are  also  numbers  of  our  citizens  engaged  in  business 
or  practicing  professions  in  different  parts  of  the  Empire.  Besides 
these,  more  or  less  persons,  originally  subjects  of  Turkey  and  since 
naturalized  in  the  United  States,  have  returned  to  the  country 
of  their  birth  and  are  temporarily  residing  there.  The  whole 


NAVAL  OFFICERS  SENT  TO  AID  MISSIONARIES        125 

number  of  persons  comprising  these  several  classes  cannot  be  ac- 
curately estimated,  but,  the  families  of  such  citizens  being  con- 
sidered, can  hardly  be  less  than  five  or  six  hundred,  and  may 
possibly  exceed  that  total. 

"Outside  of  the  capital  and  a  few  commercial  seaport  towns,  the 
bulk  of  this  large  American  element  is  found  in  the  ulterior  of 
Asia  Minor  and  Syria,  remote  from  the  few  consular  establish- 
ments maintained  by  this  government  in  that  quarter,  inaccessi- 
ble except  by  difficult  journeys,  and  isolated  from  each  other  by 
the  broken  character  of  the  mountain  country  and  the  absence  of 
roads.  Under  these  circumstances  and  in  the  midst  of  the  alarm- 
ing agitation  which  for  more  than  a  year  past  has  existed  in  Asia 
Minor,  it  has  been  no  slight  task  for  the  representative  of  the 
United  States  to  follow  the  interests  of  those  whose  defense  neces- 
sarily falls  to  his  care,  to  demand  and  obtain  the  measures  in- 
dispensable to  their  safety,  and  to  act  instantly  upon  every  appeal 
for  help  in  view  of  real  or  apprehended  peril.  It  is,  however,  grati- 
fying to  bear  testimony  to  the  energy  and  promptness  of  the 
minister  in  dealing  with  every  grievance  brought  to  his  notice, 
and  his  foresight  in  anticipating  complaints  and  securing  timely 
protection  in  advance  of  actual  need.  The  efforts  of  the  minister 
have  had  the  moral  support  of  the  presence  of  naval  vessels  of 
the  United  States  on  the  Syrian  and  Adanan  coasts  from  time  to 
time  as  occasion  required,  and  at  the  present  time  the  San  Fran- 
cisco and  Marblehead  are  about  to  be  joined  by  the  Minneapolis, 
which  has  lately  been  ordered  to  the  eastern  waters  of  the  Mediter- 
ranean, the  squadron  being  under  the  command  of  Rear-Admiral 
Selfridge,  an  officer  whose  record  indicates  the  necessary  dis- 
cretion in  dealing  with  whatever  emergencies  may  arise." 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  vi,  pp. 
342-43-) 


CHAPTER   III 

TREATIES  AND  OTHER  INTERNATIONAL 
AGREEMENTS 


§  15.  FORMATION   OF   TREATIES 


WHEN  governments  find  it  possible  to  reach  an  agreement  for 
the  settlement  of  some  troublesome  difficulty  or  to  regulate  for 
the  future  some  matter  of  sufficient  importance,  the  understand- 
ing entered  into  must  be  observed  with  all  good  faith  by  each  of 
the  parties.  Since  in  the  course  of  time  lapses  of  memory  and  other 
influences  may,  in  the  case  of  one  or  the  other  of  the  parties,  ob- 
scure the  nature  of  his  promise,  the  experience  of  nations  and  their 
widest  practice  have  shown  the  advantage  of  celebrating  treaties 
to  express  the  common  intention  —  the  meeting  of  the  minds 
—  of  the  parties  concerned.  The  law  of  treaties  is  nothing  but  a 
series  of  provisions  recognized  as  suitable  for  discovering  this 
common  intention  or  understanding  applicable  to  the  conditions 
which  arise. 

The  method  followed  in  the  negotiation  of  such  treaties  con- 
sists in  the  appointment  of  agents  of  the  government,  authorized 
by  an  instrument  called  "full  powers,"  to  enter  into  discussions 
with  agents  of  the  other  government  similarly  provided.  The 
"full  powers"  limit  the  scope  of  the  proposed  treaty.  After  the 
plenipotentiaries  have  submitted  their  "full  powers"  one  to  the 
other,  they  are  ready  to  enter  upon  the  discussions,  the  results 
of  which  are  drawn  up  in  a  series  of  articles.  The  separate  copies 
are  carefully  compared  and  then  transmitted  to  the  governments 
concerned.  If  the  work  of  the  negotiators  has  been  faithfully 
performed  and  if  no  controlling  motive  interferes,  the  appropriate 
authorities  of  each  government  will  ratify  the  acts  of  its  agents, 
whereby  the  treaty  becomes  recognized  as  a  binding  obligation 


PERPETUAL  LEASES  IN  JAPAN  127 

upon  the  whole  state  through  the  action  of  the  government  au- 
thorized to  represent  it  in  international  affairs.  Due  and  formal 
notice  of  ratification  is  afforded  by  a  subsequent  exchange  of 
ratifications  by  agents  delegated  for  that  purpose  at  a  time  and 
place  usually  provided  for  in  the  treaty  itself. 

(Cf.   Gaillard  Hunt:   The  Department  of  State  of  the  United 
States  [New  Haven,  1914],  p.  400). 


§  16.  INTERPRETATION    AND    APPLICATION    OF    TREATIES 


VESTED  RIGHTS  IN  THE  CANAL  ZONE   (1913) 

THE  Joint  International  Commission  on  Panama  Claims1 
adopted  a  rule  dated  August  4,  1913,  to  the  effect  that  "in  all 
matters  affecting  the  rights  of  private  parties,  the  treaty  between 
the  United  States  of  America  and  the  Republic  of  Panama  is  to 
be  referred  to  as  of  the  date  of  the  exchange  of  ratifications,  to 
wit,  February  26,  1904." 

(American  Journal  of  International  Law  [1914],  vol.  vm,  p.  741.) 


PERPETUAL  LEASES   IN  JAPAN 

The  Permanent  Court  of  Arbitration  at  The  Hague, 

THE  early  relations  of  Japan  with  Western  nations  were  upon 
the  basis  of  extraterritoriality.  In  order  to  accommodate  foreign 
settlement  and  to  facilitate  urban  development,  it  was  usually 
stipulated  in  the  various  treaties  that  Japan  would  grant  to  resi- 
dent aliens  the  right  to  hold  land  in  certain  localities  for  building 
purposes  on  leases  in  perpetuity.  The  lots  of  land  thus  set  aside 
were  specified  in  the  leases,  and  the  only  assessment  that  they 
had  to  bear  was  an  annual  ground  rent  paid  to  the  Japanese 
Government  in  lieu  of  all  municipal  charges.  The  ultimate  own- 
ership of  the  land,  however,  was  reserved  to-  the  state. 

As  the  purpose  of  the  leases  was  the  development  of  commerce, 
the  lessees  erected  warehouses  and  residences  upon  their  hold- 

1  See  p.  174  for  account  of  the  organization  and  competence  of  this  commission. 


128    INTERPRETATION  AND  APPLICATION  OF  TREATIES 

ings;  in  some  cases  the  terms  of  the  leases  called  for  such  build- 
ings under  penalty  of  forfeiture.  There  was  usually  no  separate 
title  to  the  buildings,  and  in  the  transfers  made  under  consular 
jurisdiction  they  were  held  to  pass  with  the  land. 

As  Japan  in  the  course  of  time  conformed  more  and  more  to 
Western  standards,  it  was  felt  that  the  early  treaties  were  out  of 
harmony  with  modern  conditions.  Accordingly,  she  took  steps 
to  emancipate  herself  from  the  consular  regime  and  to  that  end 
negotiated  in  1894-96  a  new  series  of  treaties  with  the  various 
European  powers  and  with  the  United  States.  These  revised 
treaties  were  of  a  uniform  type  and  provided  for  the  complete 
elimination  of  extraterritorial  jurisdiction  by  the  year  1899. 
Among  other  provisions  it  was  stipulated  that  the  foreign  settle- 
ments were  to  be  incorporated  into  the  general  municipal  system 
of  Japan  and  that  the  funds  and  common  property  of  the  settle- 
ments were  to  be  transferred  to  the  competent  local  authorities. 
It  was  further  provided  —  quoting  from  the  treaty  with  Great 
Britain  of  July  16,  1894  —  that  "when  such  incorporation  takes 
place,  .  .  .  existing  leases  in  perpetuity  under  which  property 
is  now  held  in  the  said  settlements  shall  be  confirmed,  and  no 
conditions  whatsoever  other  than  those  contained  in  such  exist- 
ing leases  shall  be  imposed  in  respect  of  such  property." 

All  the  revised  treaties  had  similar  clauses,  but  in  a  note  ad- 
ditional to  her  treaty,  Germany  more  exactly  stipulated  that 
neither  the  lessee  nor  his  successors  should  pay  any  charge  upon 
the  leased  lands  apart  from  the  ground  rent,  and  that  the  rights 
acquired  under  the  treaty  should  continue  even  after  its  ex- 
piration. 

When  the  new  treaties  came  to  be  applied,  a  difference  of  in- 
terpretation immediately  developed  on  the  question  of  leases. 
The  Japanese  Government  maintained,  and  by  its  practice  applied, 
the  doctrine  that  the  buildings  constructed  upon  the  leased  lands 
were  separate  from  them  for  purposes  of  registration  and  taxa- 
tion. According  to  one  Japanese  commentator,  they  formed  two 
immovables,  independent  of  each  other  and  hence  entirely  sepa- 
rate both  in  fact  and  in  law.  "  Take  for  example  a  house.  It  is  in 
nature  attached  to  the  land.  But  the  ideas  of  our  country  up  to 
the  present  day  have  regarded  it  as  a  thing  independent  of  the 


PERPETUAL  LEASES  IN  JAPAN          129 

land  and  not  as  belonging  to  the  land.  Hence  the  question  of 
attachment  to  an  immovable  cannot  here  arise."  The  other  par- 
ties to  the  treaties,  however,  protested  that  a  house-tax  or  other 
impost  upon  the  buildings  was  a  violation  of  treaty  stipulations, 
holding  them  to  be  "part  and  parcel  of  the  lands."  The  foreigners 
took  especial  exception  to  certain  ordinances  of  the  Japanese 
Government  calling  for  the  registration  of  the  perpetual  leases, 
termed  in  the  ordinances  "superficies,"  and  instituting,  in  the  case 
of  transfers,  a  tax  of  2\  per  cent  on  the  value  of  the  buildings 
transferred.  These  regulations,  it  was  asserted,  were  in  violation 
of  prescriptive  rights  and  had  the  effect  of  depreciating  the  value 
of  the  leaseholds,  while  the  house-tax  itself,  though  not  excessive 
in  the  first  instance,  was  within  the  discretion  of  local  assemblies 
in  which  the  foreigner  had  no  voice,  and  might  be  levied  as  often 
as  deemed  necessary  or  convenient. 

Much  diplomatic  protest  followed  in  the  course  of  the  years 
1899  to  1902.  The  Japanese  Government  was  firm  in  its  conten- 
tion that  its  enactments  "do  not  have  the  effect  of  exempting  the 
buildings  from  the  taxes  and  registration  fees  which  are  leviable 
in  respect  to  other  buildings;  neither  do  they  relieve  foreigners 
from  the  obligation  to  pay  income  taxes  in  respect  of  incomes  de- 
rived from  property  held  under  such  leases;"  and  it  expressed  in- 
ability "to  bring  themselves  to  the  conclusion  that  the  provisions 
of  the  treaties  now  in  force  exempting  property  held  under  per- 
petual leases  from  taxation  have  the  extended  meaning  which 
has  been  claimed  for  them."  But  to  settle  the  dispute,  the  Japan- 
ese Government  finally  made  an  offer  to  the  protesting  powers  to 
arbitrate  the  validity  of  the  house- tax  (but  not  the  income  tax), 
and  Great  Britain,  France,  and  Germany  made  acceptance.  The 
United  States  did  not  become  a  party  to  the  arbitration,  but,  by 
an  exchange  of  notes  with  Japan,  it  was  agreed  that  the  two  gov- 
ernments would  abide  by  the  decision  rendered  and  that  Japan 
would  "apply  the  principle  to  citizens  of  the  United  States  equally 
with  the  subjects  and  citizens  of  Germany,  France,  and  Great 
Britain." 

In  fulfillment  of  the  agreement,  a  protocol  was  concluded  on 
August  28,  1902,  between  the  three  European  powers  on  the  one 
side,  and  Japan  on  the  other.  The  question  at  issue  was  formu- 


130    INTERPRETATION  AND  APPLICATION  OF  TREATIES 

lated  as  follows:  "Whether  or  not  the  provisions  of  the  treaties 
and  other  engagements  .  .  .  exempt  only  land  held  under  leases 
in  perpetuity  granted  by  or  on  behalf  of  the  Japanese  Govern- 
ment, or  land  and  buildings  of  whatever  description,  constructed 
or  which  may  hereafter  be  constructed  on  such  land,  from  any 
imposts,  taxes,  charges,  contributions,  or  conditions  whatsoever, 
other  than  those  expressly  stipulated  in  the  leases  in  question  ?  " 

The  tribunal  was  to  consist  of  three  arbitrators,  members  of 
the  Permanent  Court  of  Arbitration.  Failing  selection  of  the  um- 
pire by  the  other  members  of  the  tribunal,  the  choice  was  vested 
in  the  King  of  Sweden  and  Norway.  Definite  provisions  were 
made  for  the  submission  of  cases,  counter-cases,  evidence,  argu- 
ments, and  final  replies,  and  for  the  general  conduct  of  the  ar- 
bitration the  Hague  Convention  of  1899  was  to  govern. 

The  tribunal  met  at  The  Hague  on  November  21,  1904,  and 
was  composed  of  M.  Renault,  designated  by  the  European  powers, 
M.  Motono,  the  Japanese  Ambassador  at  Paris,  and  the  umpire, 
M.  Gram,  of  Norway,  chosen  by  the  other  two.  Four  sessions 
were  held  and  the  award  was  rendered  May  22,  1905. 

In  justification  of  the  house-tax,  Japan  relied  upon  a  strict  in- 
terpretation of  the  treaties  and  the  leases.  It  was  incumbent  upon 
the  foreigner  to  establish  the  exemption  and  it  was  not  sufficient 
to  allege  a  like  immunity  under  the  old  regime.  Conditions  were 
not  similar  in  the  two  cases.  Under  extraterritorial  jurisdiction 
it  was  notorious  that  the  foreigner  was  exempt  from  all  taxation, 
but  this  privilege  was  withdrawn  under  the  revised  treaties  which 
established  "a  positive  regime  of  equality  between  strangers  and 
nationals  in  the  matter  of  imposts."  One  element  in  the  interpre- 
tation of  the  leases  was  the  application  of  Japanese  law,  for  since 
the  leases  were  concerned  only  with  the  thing  leased  —  land  — 
and  since  this  land  was  situated  in  Japan,  the  territorial  law  ap- 
plied as  a  condition  precedent  to  any  judicial  lien.  Japan  had  not 
repealed  Japanese  law  for  another  system.  Even  under  the  old 
treaties,  it  had  not  been  superseded,  but  rather  adapted  so  as  to 
square  with  the  exceptional  measures  of  extraterritoriality. 
Japanese  law  reserved  to  the  state  the  property  in  land,  but  made 
a  distinction  between  land  and  buildings,  both  for  civil  and  fiscal 
purposes.  This  distinction  was  very  old,  deriving  from  ancient 


PERPETUAL  LEASES  IN  JAPAN          131 

custom,  which  never  considered  buildings  as  forming  part  of  the 
land,  or  as  accessories.  In  actual  Japanese  legislation  land  and 
buildings  could,  separately,  be  burdened  with  real  rights,  and  an 
act  of  disposition  of  the  one  had  no  necessary  effect  upon  the  other. 
Financial  legislation  and  scientific  economy  everywhere  recog- 
nized two  elements  in  national  wealth  —  the  soil,  the  source  of 
natural  production,  and  wealth  created  by  artificial  effort.  It 
was  inequitable  to  transfer  to  the  one  the  exemptions  accorded 
to  the  other.  This  distinction  between  the  ownership  of  the  soil 
and  of  the  buildings  was  not  peculiar  to  Oriental  law;  it  was  found 
in  many  legal  systems,  among  them  the  French  code,  which  even 
recognized  separate  ownership  in  the  various  stories  of  a  building. 
The  property  in  the  land  belonged  to  the  Japanese  Government, 
but  the  property  in  the  buildings  belonged  to  holders  of  the 
leases.  This  was  seen  hi  the  case  of  cancellation  of  leases;  the  land 
reverted  to  the  government  as  original  owner,  but  the  buildings 
were  not  said  to  revert  but  to  become  the  property  of  the  Japanese 
Government,  implying  that,  without  this  forfeiture  clause,  title 
to  the  buildings  would  not  vest  in  the  government.  Further, 
while  leased  lands,  to  be  transferred,  required  the  assent  of  con- 
sul and  governor,  buildings  on  leased  lands  were  constantly 
bought  and  sold  without  any  such  formalities,  indicating  that 
they  were  held  independently  of  the  leases.  In  some  localities 
twenty  per  cent  of  the  owners  of  buildings  were  other  than  lease- 
holders. The  fact  that  the  leases  were  given  for  the  purpose  of 
building  could  work  no  prejudice  to  the  sovereign  right  of  Japan 
to  tax  property  outside  the  actual  grant.  The  mere  statement  of 
the  purpose  did  not  enlarge  the  scope  of  the  grant,  and  a  refer- 
ence to  old  treaties  —  for  example,  that  with  Great  Britain  in 
1858  —  indicated  a  clear  distinction  on  this  point:  British  sub- 
jects were  to  have  the  right  to  lease  ground  and  to  purchase  the 
buildings  thereon  and  might  erect  dwellings  and  warehouses. 

The  protesting  powers  met  these  contentions  by  a  denial  that 
Japanese  law  should  apply  to  the  case.  The  treaties  and  the 
leases  went  outside  of  municipal  law  and  themselves  constituted 
the  only  law  applicable.  Interpretation  should  be  on  the  basis 
of  natural  law,  reason,  and  logic.  There  was  no  intention  to  go 
beyond  the  assumptions  of  the  contract,  but  rather  to  find  out 


132    INTERPRETATION  AND  APPLICATION  OF  TREATIES 

what  the  assumptions  were.  Everything  incorporated  insepara- 
bly in  the  soil  in  a  permanent  and  durable  manner  constituted  a 
single  whole  with  it.  It  could  be  otherwise  only  by  express  stipu- 
lation. Nothing  could  derogate  from  this  principle  of  accession 
but  a  right  of  "superficies"  admitted  by  the  lessee.  That  the 
distinction  contended  for  by  Japan  was  not  contemplated  is 
proven  by  the  purpose  of  the  parties,  which  was  to  build,  by  the 
special  arrangement  agreed  to  by  the  lessor,  by  express  mention 
of  an  immovable  whole  (soil  and  buildings)  as  reverting  to  the 
lessor  or  as  passing  in  transfer,  and  by  constant  usage  in  disposi- 
tions, alienations,  etc.  The  rent  payable  for  the  leases  was  out  of 
all  proportion  to  the  value  of  the  improvements  to  be  made.  It  — 
the  rent  —  was  a  ground  rent,  conventional  and  in  the  lump,  and 
was  the  counterpart  of  various  municipal  obligations  assumed  by 
the  Japanese  Government.  It  was  further  maintained  that  the 
intention  of  the  negotiators,  in  revising  the  treaties,  was  clearly 
to  treat  the  buildings  as  part  of  the  leased  lands.  The  Japanese 
text  indicates  this  by  using  for  "property"  a  word  signifying 
"land  and  things  fixed  thereto."  The  various  governments  in- 
terested had  attached  the  same  meaning  to  the  expression,  but 
now  the  Japanese  Government  was  contending  for  a  narrow  and 
technical  interpretation  of  the  word,  forgetful  that  the  property 
dealt  with  was  not  the  mere  land  granted  in  the  original  leases, 
but  the  property  "now  held  in  the  settlements"  at  the  time  of  the 
incorporation  provided  for  by  the  treaties.  Under  extraterritorial 
law  houses  were  not  recorded  separately  from  the  land  and  this 
was  the  law  in  force  at  the  tune  the  treaties  were  made.  As  for 
the  equity  hi  the  case,  the  protesting  powers  pointed  out  that  only 
the  execution  of  a  contract  was  at  issue  and  that  they  would  not 
have  consented  to  forego  the  rights  acquired  by  former  treaties 
except  for  compensation.  But,  if  a  privileged  position  resulted,  it 
would  be  largely  justified  by  the  contribution  that  the  first  foreign 
residents  had  made  to  the  commercial,  economic,  and  financial 
prosperity  of  Japan.  If  there  was  inequality,  it  was  all  in  favor  of 
the  Japanese,  who  enjoyed  in  European  countries  freedom  to 
acquire  outright  property  in  immovables,  though  this  privilege 
was  denied  foreigners  in  Japan. 
The  tribunal,  while  admitting  that  some  argument  might  be 


PERPETUAL  LEASES  IN  JAPAN  133 

adduced  that  soil  and  buildings  constituted,  from  the  fiscal  point 
of  view,  entirely  distinct  objects,  was  inclined  to  attach  most 
importance  to  the  actual  practice  under  the  leases  and  to  the  in- 
tention of  the  negotiators  of  the  treaties.  For  that  reason  it  did 
not  stop  to  discuss  the  principles  invoked  from  the  civil  law.  It 
was  not  to  be  disputed  that  both  land  and  buildings  had  been 
exempt  from  all  imposts  not  specified  hi  the  leases.  The  claim  of 
Japan  that  this  was  because  the  consular  tribunals  had  not  given 
the  necessary  sanction  to  the  Japanese  fiscal  laws  was  void  of  proof } 
and,  besides,  Japan  had  never  made  reservations  looking  toward 
the  maintenance  of  the  right  thus  impaired.  When  negotiating 
the  revised  treaty  with  Great  Britain,  Japan  had  sought  to  place 
foreigners  on  the  same  footing  as  Japanese  subjects  in  the  matter  of 
taxation,  but  the  agreement  made  was  to  maintain  the  status  quo. 
The  contention  that  the  status  quo  did  not  contemplate  the  land 
was  not  borne  out  by  the  language  of  the  negotiators.  It  was  not 
to  be  assumed  that  Great  Britain  intended  to  make  a  restriction 
with  reference  to  the  buildings,  and  similarly  in  the  case  of  the 
other  powers:  the  treaties  did  not  refer  to  the  lands  as  they  would 
have  done  if  the  immunity  was  to  be  confined  to  them  alone,  con- 
trary to  the  previous  practice,  but  used  expressions  that  com. 
prehended  the  whole  subject-matter  of  the  leases.  Hence  the 
award : 

"The  provisions  of  the  treaties  and  other  engagements  men- 
tioned in  the  protocols  of  arbitration  exempt  not  only  the  lands 
held  in  virtue  of  the  perpetual  leases  granted  by  the  Japanese 
Government  in  its  name,  but  they  exempt  the  lands  and  buildings 
of  all  kinds  constructed  or  which  may  be  constructed  upon  these 
lands,  from  all  imposts,  taxes,  charges,  contributions,  or  any  con- 
ditions other  than  those  expressly  stipulated  in  the  leases  in 
question." 

(Archives  Diplomatique*  [1905],  vol.  xcrv,  pp.  666-740;  Brit- 
ish and  Foreign  State  Papers,  vol.  xcv,  pp.  86-90 ;  vol.  xcvm, 
pp.  140-46;  Foreign  Relations  of  tlie  United  States,  1901,  pp. 
313-66;  1902,  pp.  687-730;  G.  G.  Wilson,  The  Hague  Arbitra- 
tion Cases.) 


134  TERMINATION  OF  TREATIES 

§  17.  TERMINATION   OF  TREATIES 


THE   NEUTRALIZATION   OF   THE   BLACK    SEA 

(1856,  1870-71) 

IN  1856,  the  powers  of  Europe  assembled  in  congress  at  Paris 
to  settle  various  questions  arising  out  of  the  relations  between 
Turkey  and  Russia  after  the  Crimean  War.  The  results  of  their 
deliberations  were  the  Treaty  of  Paris  of  March  30,  1856,  signed 
by  Austria,  Great  Britain,  France,  Prussia,  Russia,  Sardinia,  and 
Turkey;  a  convention  of  the  same  date  between  the  same  parties; 
and  a  convention,  also  of  the  same  date,  between  Russia  and  Tur- 
key. The  substance  of  these  agreements  was  that  the  Black  Sea 
should  be  neutralized;  that  it  should  be  closed  to  vessels  of  war  of 
all  states,  Russia  and  Turkey  included;  that  no  military  or  naval 
establishment  should  be  maintained  on  its  coasts;  and  that,  to 
guarantee  to  Russia  immunity  from  foreign  attack,  Turkey  should 
prohibit  the  passage  of  all  warships  through  the  Dardanelles  and 
the  Bosphorus  as  long  as  the  Porte  remained  at  peace.  Exception 
was  made  only  in  the  case  of  light  vessels  in  the  coastal  service  or 
on  diplomatic  missions. 

In  1870,  while  two  of  the  signatory  powers  were  engaged  in  war, 
Russia  announced  her  intention  to  regard  herself  as  no  longer 
bound  by  the  special  convention  of  the  Treaty  of  1856  respecting 
the  neutrality  of  the  Black  Sea.  In  a  note  of  October  19/31  ad- 
dressed to  the  other  parties  to  the  treaty,  Prince  Gortchakoff 
explained  that  Russia  considered  the  principle  (the  neutraliza- 
tion of  the  Black  Sea)  "to  be  no  more  than  a  theory,"  inasmuch  as 
Turkey  maintained  unlimited  naval  forces  in  the  archipelago  and 
the  straits,  while  Great  Britain  and  France  could  concentrate  their 
squadrons  in  the  Mediterranean.  But  what  was  especially  signifi- 
cant in  the  note  was  the  reference  to  the  validity  of  the  treaty,  as 
follows:  "The  treaty  of  March  18/30,  1856,  has,  moreover,  not 
escaped  the  modifications  to  which  most  European  transactions 
have  been  exposed,  and  in  the  face  of  which  it  would  be  difficult 
to  maintain  that  the  written  law,  if  founded  upon  the  respect  for 
treaties  as  the  basis  of  public  right  and  regulating  the  relations 


THE  NEUTRALIZATION  OF  THE  BLACK  SEA  135 

between  states,  retains  the  moral  validity  which  it  may  have  pos- 
sessed at  other  times."  (Parliamentary  Papers  [1871],  vol.  36, 
p.  n.) 

The  modifications  referred  to  were  stated  to  be  (i)  the  union  of 
Moldavia  and  Wallachia  "by  a  series  of  revolutions  which  are 
equally  at  variance  with  the  letter  and  the  spirit  of  these  transac- 
tions;" (2)  the  admission  to  the  Black  Sea  of  "whole  squadrons" 
of  foreign  warships;  and  (3)  the  employment  of  ironclads  in  mod- 
ern navies,  increasing  thereby  the  danger  for  Russia  in  the  event  of 
war  "by  adding  considerably  to  the  already  patent  inequality  of 
the  respective  naval  forces." 

For  these  reasons,  the  Russian  representatives  were  to  bring  to 
the  knowledge  of  the  governments  to  which  they  were  accredited 
the  following  conclusions:  "Our  Illustrious  Master  cannot  admit 
de  jure  that  treaties,  violated  in  several  of  their  essential  and 
general  clauses,  should  remain  binding  in  other  clauses  directly 
affecting  the  interests  of  his  Empire.  His  Imperial  Majesty  can- 
not admit  de  facto  that  the  security  of  Russia  should  depend  on  a 
fiction  which  has  not  stood  the  test  of  time,  and  should  be  imperiled 
by  her  respect  for  engagements  which  have  not  been  observed  in 
their  integrity.  .  .  .  His  Imperial  Majesty  cannot  any  longer 
hold  himself  bound  by  the  stipulations  of  the  Treaty  of  March 
18/30, 1856,  as  far  as  they  restrict  his  sovereign  rights  in  the  Black 
Sea."  (Parliamentary  Papers  [1871],  vol.  36,  p.  12.) 

In  his  reply  to  the  Russian  note,  Lord  Granville,  the  British 
Foreign  Secretary,  set  aside  consideration  of  the  merits  of  the 
Russian  statements  of  fact  and  confined  himself  to  the  question, 
"In  whose  hands  lies  the  power  of  releasing  one  or  more  of  the 
parties  from  all  or  any  of  these  stipulations?  "  His  criticism  of  the 
note  was,  in  part,  as  follows: 

"The  dispatches  of  Prince  Gortchakoff  appear  to  assume  that 
any  one  of  the  powers  who  have  signed  the  engagement  may  allege 
that  occurrences  have  taken  place  which,  in  its  opinion,  are  at 
variance  with  the  provisions  of  the  treaty,  and,  although  this  view 
is  not  shared  nor  admitted  by  the  co-signatory  powers,  may  found 
upon  that  allegation,  not  a  request  to  those  governments  for  the 
consideration  of  the  case,  but  an  announcement  to  them  that  it 
has  emancipated  itself,  or  holds  itself  emancipated,  from  any 


136  TERMINATION  OF  TREATIES 

stipulations  of  the  treaty  which  it  thinks  fit  to  disapprove.  Yet 
it  is  quite  evident  that  the  effect  of  such  doctrine,  and  of  any  pro- 
ceeding which,  with  or  without  avowal,  is  founded  upon  it,  is  to 
bring  the  entire  authority  and  efficacy  of  treaties  under  the  dis- 
cretionary control  of  each  one  of  the  powers  who  may  have  signed 
them ;  the  result  of  which  would  be  the  entire  destruction  of  treaties 
in  their  essence.  For  whereas  their  whole  object  is  to  bind  powers 
to  one  another,  and  for  this  purpose  each  one  of  the  parties  sur- 
renders a  portion  of  its  free  agency,  by  the  doctrine  and  proceed- 
ing now  in  question,  one  of  the  parties  in  its  separate  and  individual 
capacity  brings  back  the  entire  subject  into  its  own  control,  and 
remains  bound  only  to  itself."  (Parliamentary  Papers  [1871],  vol. 

36,  p.  15-) 

Prince  Gortchakoff,  however,  found  himself  unable  to  admit 
"that  the  abrogation  of  a  theoretical  principle  without  immediate 
application,  which  only  restores  to  Russia  a  right  of  which  no 
great  power  can  be  deprived,  can  be  regarded  as  a  menace  to  peace, 
or  that  in  annulling  a  point  of  the  Treaty  of  1856  the  annulment 
of  the  whole  can  be  implied."  (Parliamentary  Papers  [1871], 
vol.  36,  p.  34.) 

The  other  signatory  powers  took  the  same  view  of  the  treaty  as 
Great  Britain.  On  the  suggestion  of  Bismarck,  a  conference  of 
these  powers  was  held  at  London  in  January,  1871,  for -the  pur- 
pose of  removing  the  diplomatic  difficulty  that  had  arisen.1  In 
an  annex  to  the  protocol  of  the  first  day's  proceedings,  the  follow- 
ing declaration  was  made  with  respect  to  the  validity  of  treaties: 
"The  plenipotentiaries  of  North  Germany,  of  Austria-Hungary, 
of  Great  Britain,  of  Italy,  of  Russia,  and  of  Turkey,  assembled 
to-day  in  conference,  recognize  that  it  is  an  essential  principle  of 
the  law  of  nations  that  no  power  can  liberate  itself  from  the  engage- 
ments of  a  treaty,  nor  modify  the  stipulations  thereof,  unless  with 
the  consent  of  the  contracting  powers  by  means  of  an  amicable 
arrangement."  (Parliamentary  Papers  [1871],  vol.  36,  p.  127.) 

But,  having  enunciated  the  general  principle,  the  powers  pro- 
ceeded to  grant  to  Russia  what  she  had  contended  for  under  her 

1  France  was  not  represented  in  the  conference  until  the  session  of  March  13,  be- 
cause of  difficulty  in  securing  a  safe-conduct  for  the  passage  of  her  plenipotentiary 
through  the  Prussian  lines.  She,  however,  signed  the  Treaty  of  London. 


THE  WOHLGEMUTH  AFFAIR  137 

Interpretation  of  the  treaty.  A  new  agreement1  was  entered  into 
whereby  articles  n,  13,  and  14  of  the  Treaty  of  Paris  were  abro- 
gated, together  with  the  separate  convention  between  Russia  and 
Turkey  annexed  to  article  14,  the  whole  being  replaced  by  the 
following:  "The  principle  of  the  closing  of  the  Straits  of  the  Dar- 
danelles and  the  Bosphorus  such  as  it  has  been  established  by 
the  separate  convention  of  March  30,  1856,  is  maintained,  with 
power  to  His  Imperial  Majesty  the  Sultan  to  open  the  said  Straits 
in  time  of  peace  to  the  vessels  of  war  of  friendly  and  allied  powers 
in  case  the  Sublime  Porte  should  judge  it  necessary  in  order  to 
secure  the  execution  of  the  stipulations  of  the  Treaty  of  Paris  of 
March  30, 1856.  The  Black  Sea  remains  open,  as  heretofore  to  the 
mercantile  marine  of  all  nations."  (Parliamentary  Papers  [1871], 
vol.  36,  p.  170.) 

(British  and  Foreign  State  Papers,  vol.  XLVI,  pp.  8-23 ;  vol.  LXI, 
pp.  7-11;  1193-1227.  Parliamentary  Accounts  and  Papers  [1871], 
vol.  36,  pp.  1-176.) 


THE  WOHLGEMUTH  AFFAIR   (1889) 

TOWARD  the  end  of  February,  1889,  a  Bavarian  tailor,  Lutz  by 
name,  residing  in  Basle,  received  from  Wohlgemuth,  a  German 
police  inspector  of  Mulhausen,  a  letter  signed  with  a  fictitious 
name  proposing  that  he  enter  the  service  of  the  German  police. 
Later  an  interview  was  arranged  for  at  Rheinfelden  in  Switzer- 
land, and  Wohlgemuth  sent  Lutz  a  postal  money  order  of  ten 
francs  to  pay  his  transportation.  At  this  interview  arrangements 
were  discussed  and  agreed  upon  and  Wohlgemuth  handed  Lutz 
eighty  marks.  Lutz  commenced  to  make  his  reports  and  received 
remittances  of  several  hundred  marks.  Wohlgemuth  expressed 
himself  as  pleased  with  Lutz's  activities  and  in  one  of  his  letters 
wrote  to  him,  "  Wtthlen  Sie  nur  lustig  drauf  los."  * 

1  Treaty  of  London,  March  13,  1871. 

*  WtihUn  describes  the  action  of  a  mole;  to  burrow  secretly  and  undermine;  also 
to  ferret  out,  as  we  should  say.  As  describing  political  activity  it  would  mean  to 
stir  up  discontent,  to  work  up  an  agitation  without  actually  being  directly  concerned 
in  any  overt  act.  Die  WUhler  und  Ucizer  is  stronger  and  means  social  agitators  in  a 
bad  sense  of  actual  disturbers  of  public  order.  Withicn,  used  in  the  sentence, 


138  TERMINATION  OF  TREATIES 

About  the  middle  of  April,  Lutz,  it  appears,  proposed  a  new 
meeting  at  Rheinfelden  to  make  important  communications  to 
Wohlgemuth.  He  claims  in  this  matter  to  have  acted  only  upon 
the  advice  of  his  Socialist  friends,  who  wanted  him  to  expose 
Wohlgemuth  whose  activities  in  Switzerland  had  been  known  for 
some  time.  On  the  following  Sunday,  April  21,  1889,  when  Wohl- 
gemuth crossed  the  frontier  and  arrived  in  Rheinfelden  to  keep  the 
appointment  as  agreed  upon,  the  local  police,  to  whom  Lutz's  as- 
sociates had  shown  some  of  the  letters  received  from  Wohlgemuth, 
arrested  both  Lutz  and  Wohlgemuth.  They  were  searched 
and  questioned,  and  papers  considered  of  a  compromising  nature 
were  found  on  Wohlgemuth.  In  vain  he  pleaded  his  official  posi- 
tion as  a  German  police  inspector.  He  was  imprisoned  and  Lutz 
was  momentarily  released.  Wohlgemuth  admitted  that  he  had 
written  the  letters  in  question,  but  insisted  that  his  action  had  been 
confined  to  a  perfectly  legitimate  investigation  of  the  socialistic 
activities  on  Swiss  territory.  In  his  examination  he  affirmed  that 
he  had  expressly  warned  Lutz  at  then:  first  interview  against  in- 
citing to  unlawful  agitation,  and  that  it  had  been  understood  that 
Lutz  was  to  do  no  more  than  keep  him  informed  of  what  was 
going  on. 

The  German  Government  maintained  that  it  was  necessary  in 
the  interests  of  its  national  security  to  employ  secret  agents  to 
secure  information  of  the  socialistic  activities  on  Swiss  territory. 
Prince  Bismarck  demanded  the  release  of  Wohlgemuth,  but  the 
Swiss  Federal  Council  proceeded  to  conduct  an  investigation,  as 
a  result  of  which  they  decided  to  take  action  in  conformity  with 
article  70  of  the  Swiss  Constitution,  which  authorizes  the  Con- 
federation to  expel  from  its  territory  "aliens  who  constituted  a 
danger  to  Switzerland's  internal  security  or  its  foreign  relations." 
Wohlgemuth  was  accordingly  expelled,  and  after  a  supplementary 
investigation  a  similar  course  was  taken  in  regard  to  the  Bava- 
rian tailor,  Lutz.  The  decree  of  expulsion  against  Wohlgemuth 
gave  as  the  reasons  for  this  action  that  he  had  committed  on  Swiss 

"  Wuhlen  Sie  nur  lustig  drauf  las,"  may  reasonably  be  said  to  imply  an  exhortation 
to  Lutz  to  incite  his  associates  to  disturb  the  peace.  In  France  Wohlgemuth  was 
characterized  as  an  agent-provocateur.  Clunet  translates  the  sentence  into  French, 
"FaiUs  de  V  agitation  souterraine  et  attez-y  gatmentl"  (Journal  de  Droit  Interna- 
tional Privi  [1889],  vol.  xvi,  p.  418.) 


THE  WOHLGEMUTH  AFFAIR  139 

territory  acts  which  would  have  the  result  of  endangering  the  in- 
ternal security  or  the  foreign  relations  of  Switzerland,  and  that 
he  had  approached  Lutz,  a  Bavarian  residing  at  Basle,  with  the 
avowed  intention  of  stirring  up  agitation  among  the  workmen  of 
Basle,  Alsace-Lorraine,  and  the  Duchy  of  Baden;  and  that  he 
wrote  him  among  other  things,  "  Wuhlen  Sie  nur  lustig  drauf  los" 
[Continue  to  stir  up  agitation  and  work  at  it  right  merrily].  In 
execution  of  this  decree  Wohlgemuth  was  expelled  after  an  im- 
prisonment of  ten  days.  (Clunet:  Journal  de  Droit  International 
Prive  [1889],  vol.  xvi,  pp.  418-23.) 

The  German  Government  took  exception  to  the  treatment  of 
Wohlgemuth  and  requested  the  Swiss  Federal  Council  to  annul 
the  decree  of  expulsion.  The  semi-official  North-German  Gaz- 
ette (June  5)  intimated  that  the  German  Government  would  have 
to  retaliate  by  enforcing  a  most  rigid  and  inconvenient  inspec- 
tion of  travelers  and  imports  crossing  the  border.  (Schulthess: 
Europaischer  Geschichtskalender  [1889],  vol.  xxx,  p.  96.) 

The  Swiss  Government  answered  the  German  Government 
that  any  "attempt"  to  apply  measures  which  were  directed 
against  Switzerland  "would  in  advance  be  considered  as  with- 
out justification."  (Archives  Diplomatique*  [1889],  26.  series,  vol. 
xxxi,  p.  334.) 

At  this  juncture  Russia  and  Germany,  and  later  Austria,  drew 
the  attention  of  the  Swiss  Government  to  the  dangers  which 
threatened  them  because  of  the  great  tolerance  accorded  anar- 
chists and  revolutionists  on  Swiss  territory,  and  as  friendly  powers, 
guarantors  of  Switzerland's  neutrality  [neutralization],  warned 
her,  if  she  did  not  repress  those  activities  of  a  nature  to  disturb 
their  internal  security,  that  they  would  have  to  consider  whether 
the  continuation  of  Switzerland's  neutrality  [neutralization]  would 
be  to  their  advantage.1  (Archives  Diplomatiques  [1889],  2d  series, 
vol.  xxxi,  p.  334.) 

The  two  governments  entered  into  an  exchange  of  notes.  The 

1  June  17,  the  North-German  Gazette  announced:  "On  the  ijth  of  this  month  the 
German  and  Russian  representatives  delivered  to  the  Swiss  Minister  for  Foreign 
Affairs  an  official  written  notice  in  which  they  complained  that  the  Swiss  authorities 
had  abused  the  rights  of  neutrality  [neutralization]  accorded  to  Switzerland  and  had 
not  fulfilled  the  corresponding  obligations."  (Schulthess:  Eurof^ucher  Gtschichts- 
kalcnder  [1889],  vol.  xxx,  p.  97.) 


140  TERMINATION  OF  TREATIES 

third  of  those  communicated  by  the  German  Government  sets 

forth  its  views  as  follows: 

"  VAKZIN,  June  26, 1889. 

"Your  report  of  the  i8th  of  this  month,  No.  69,  received,  to- 
gether with  the  two  notes  of  the  i5th  and  lyth  which  M.  Droz 
addressed  to  you.  They  state  that  the  Federal  Council  has  ex- 
pressed its  regret  that  the  Imperial  Government  refuses  to  submit 
the  Wohlgemuth  affair  to  a  fresh  examination. 

"We  arrived  at  this  decision  because  we  were  convinced  that 
no  new  examination  could  in  any  way  alter  the  fact  that  an  officer 
of  the  imperial  police  was,  with  the  knowledge  and  aid  of  Swiss 
officials,  enticed  to  Swiss  territory  so  that  he  might  be  imprisoned 
there,  and  that  the  Central  Government  adopted  this  action  of 
the  cantonal  authorities  as  its  own  by  inflicting  upon  the  German 
officer  the  penalty  of  expulsion.  No  further  inquiry  could  con- 
trovert this  fact. 

"By  the  expulsion  in  question,  the  Central  Swiss  Government 
has  evinced  a  determination  not  to  accord  to  German  officials, 
whose  duty  it  is  to  obtain  information  in  Switzerland  about  the 
plottings  of  our  German  adversaries,  the  same  indulgence  and 
toleration  granted  so  freely  in  Switzerland  to  Germans  who  are 
enemies  of  the  Empire. 

"Since  in  consequence  we  can  no  longer  protect  ourselves  by 
surveillance  on  the  spot  against  the  revolutionary  plottings  and 
writings  of  German  enemies  of  the  Empire  who  are  tolerated  in 
Switzerland,  we  shall  be  obliged,  as  I  explained  in  my  dispatch 
of  June  6  to  Your  Excellency,  to  withdraw  to  the  German  side  of 
the  frontier  the  supervision  we  exercise  over  these  hostile  plot- 
tings,  though  it  must  needs  be  said  that  supervision  thus  exer- 
cised can  be  effective  only  in  a  limited  degree,  to  the  great 
prejudice  of  the  peaceful  part  of  the  population  of  the  two 
countries.  The  precautions  to  be  taken  to  this  end  will  have 
an  undoubted  bearing  upon  the  stipulations  of  the  treaty  of 
settlement,  in  regard  to  article  2  of  which  the  Swiss  Govern- 
ment holds  an  opinion  at  variance  with  ours. 

"The  text  of  the  treaty  does  not  permit  in  our  judgment  of 
any  such  divergence  of  opinion;  it  states  that  Germans  settling 
in  Switzerland  must  be  provided  with  certain  authorizing  papers 


THE  WOHLGEMUTH  AFFAIR  141 

issued  at  the  place  whence  they  came.  If  the  Swiss  interpretation 
were  correct,  if  each  of  the  two  governments  and  especially  Ger- 
many had  wished  merely  to  recognize  the  other's  right  to  require 
or  not  to  require  the  papers  in  question,  the  text  would  have  been 
drafted  in  this  sense,  namely,  that  each  of  the  two  governments 
may  require  the  papers,  that  each  reserves  to  itself  the  right  to 
require  them  or  not  to  require  them.  If  in  this  article  the  word 
"must"  (miissen)  was  employed,  it  is  proof  that  we,  at  least, 
from  the  year  1876  have  attached  some  importance  to  being  as- 
sured that  no  German  subject  hostile  to  the  authorities  of  his 
country  can  claim  protection  in  Switzerland  by  virtue  of  this 
treaty. 

"M.  Droz's  note  considers  this  interpretation  of  ours  inad- 
missible, on  the  ground  that  it  is  irreconcilable  with  the  sovereign 
rights  of  the  contracting  parties.  To  this  I  might  simply  reply 
that  every  treaty  between  nations,  in  so  far  as  it  has  to  do  with 
duties  and  rights,  necessarily  involves  for  each  of  the  contracting 
parties  some  limitation  upon  its  absolute  freedom  in  the  exercise 
of  its  sovereign  rights. 

"In  Germany  we  do  not  look  upon  article  2  of  the  Treaty  of 
April  27, 1876,  as  placing  too  great  a  limitation  upon  the  sovereign 
rights  of  the  country.  The  proof  of  this  lies  in  the  fact  that  in  the 
German  Empire  this  article  2  has  been  applied  for  more  than  ten 
years  in  the  way  in  which  I  have  just  explained  it,  and  that  we 
grant  the  right  of  settling  in  Germany  only  to  those  Swiss  who 
present  the  certificates  of  the  country  whence  they  come,  as  pro- 
vided for  in  article  2.  If  this  procedure  is  reconcilable  with  the 
sovereignty  of  the  German  Empire,  the  argument  that  Swiss 
sovereignty  may  not  admit  of  such  a  concession  is  hardly  of  a 
nature  to  convince  us,  especially  since,  as  M.  Droz  observes,  it 
is  not  a  question  of  admitting  foreigners  in  general,  but  relates 
only  to  the  conditions  of  admission  of  German  subjects  into 
Switzerland.  There  they  retain  their  status  of  German  subjects, 
and  very  naturally  states  concluding  treaties  stipulate  therein  the 
conditions  to  be  applied  to  the  treatment  of  their  own  subjects  in 
foreign  countries. 

"Germans  who  settle  in  Switzerland  are  none  the  less  German 
subjects,  and  between  two  states  in  friendly  relations,  such  as 


142  TERMINATION  OF  TREATIES 

existed  between  Switzerland  and  the  German  Empire  in  the  year 
1876,  it  was  natural  and  conformable  to  custom  for  assurances 
to  be  exchanged  with  respect  to  the  treatment  to  be  accorded 
by  each  to  the  subjects  of  the  other,  inclusive  of  surveillance. 

"Treaties  like  the  treaty  of  settlement  of  1876  can  be  carried 
out  only  where  there  exists  that  mutual  good-will  of  which  the 
treaty  is  the  expression,  and  only  for  so  long  as  this  good-will 
continues  between  the  contracting  parties. 

"To  our  regret  the  good-will  which  we  feel  for  our  Swiss 
neighbor  is  not  reciprocated,  and  the  treaty  seems  no  longer  in 
accord  with  the  relation  which  has  sprung  up  with  this  change  of 
feeling. 

"The  Swiss  Government  has  up  to  the  present  time  simply 
failed  to  fulfill  the  stipulations  of  article  2,  and  it  is  just  here  that 
one  of  the  chief  reasons  must  be  sought  for  the  regrettable  change 
which  has  come  about  in  our  mutual  relations.  If  these  stipula- 
tions had  been  fulfilled,  it  is  not  to  be  supposed  that  the  German 
Government  would  have  felt  it  necessary  to  place  under  police  sur- 
veillance the  secret  activities  of  its  subjects  settled  in  Switzerland. 

"The  note  of  the  i5th  for  the  first  time  makes  an  official  state- 
ment in  regard  to  the  non-execution  of  article  2. 

"We  should  then  be  within  our  rights  in  declaring  the  Treaty 
of  1876  from  this  moment  void  because  of  the  official  refusal  on 
the  part  of  Switzerland  to  put  it  into  execution.  But  in  consider- 
ation of  the  consequences  involved  in  this  sudden  change  for  the 
subjects  of  both  countries,  we  shall  proceed  instead  to  make  use 
of  our  right  to  terminate  the  treaty  in  accordance  with  article 
u,  and  shall  send  you  the  necessary  powers. 

"From  the  indications  found  in  the  note  of  June  17,  that  the 
Swiss  Government  is  preparing  to  modify  its  system  for  the  pro- 
tection of  international  relations  and  interests  (police  internation- 
ale),  I  derive  the  hope  that  as  a  result  of  these  efforts  we  may  be 
relieved  in  future  of  the  necessity  of  having  recourse  on  our  own 
account  and  within  our  frontier  to  measures  of  a  nature  to  afford 
the  requisite  protection  against  the  criminal  activities  of  the  Ger- 
man Socialist  Democrats  established  in  Switzerland. 

"It  would  give  us  satisfaction  if  the  means  should  be  found  in 
Switzerland  to  restore  our  confidence  that  our  internal  security 


THE  WOHLGEMUTH  AFFAIR  143 

would  not  be  more  dangerously  menaced  from  that  quarter 
than  from  the  other  frontiers  of  the  Empire.  Had  article  2  of 
the  treaty  been  observed  in  Switzerland  with  the  same  exact- 
ness as  in  Germany,  our  confidence  would  not  have  been  shaken 
and  we  should  not  have  had  reason  to  believe  that  the  attitude 
of  the  Swiss  toward  their  German  neighbors  was  not  to-day  such 
as  would  be  expected  from  those  who  had  entered  into  a  treaty 
of  so  intimate  a  nature  as  that  of  1876. 

"M.  Droz  ends  his  note  by  asking  us  not  to  consider  the  Gov- 
ernment and  the  Swiss  people  as  the  promoters  of  revolution  and 
anarchy.  I  do  not  recall  that  we  have  made  such  a  complaint  to 
the  Department  of  Foreign  Affairs  of  the  Confederation.  Nor  do 
I  entertain  any  doubt  that  the  Central  Government  of  the  Con- 
federation intends  to  live  up  to  the  obligations  toward  neigh- 
boring nations  in  the  manner  indicated  at  the  end  of  the  note 
just  referred  to,  but  I  have  to  admit  that  the  legislation  which 
has  been  in  force  up  to  the  present  in  Switzerland  does  not  give 
the  Central  Administration  the  means  to  compel  the  local  au- 
thorities of  certain  of  the  cantons  to  observe  the  respect  which 
is  due  to  foreign  powers  and  necessary  for  the  maintenance  of 
friendly  relations  between  neighboring  states." 

In  response,  M.  Droz,  acting  under  the  direction  of  the  Federal 
Council,  addressed,  on  July  13,  the  following  note  to  M.  von 
Billow: 

"The  undersigned  has  been  directed  to  reply  as  follows  to  the 
dispatch  of  His  Excellency  Prince  Bismarck,  dated  July  26,  of 
which  His  Excellency  M.  von  Billow  delivered  him  a  copy  July  i. 

"In  his  note  of  June  15  the  undersigned  stated  that  he  should 
not  for  his  part  again  refer  to  the  Wohlgemuth  incident.  That 
he  does  so  now  is  simply  to  repeat  in  reply  to  the  dispatch: 

"First,  that  the  Swiss  authorities  have  in  no  manner  whatsoever 
laid  or  helped  to  lay  a  trap  for  the  police  inspector  of  Miilhausen; 

"Second,  that  that  official  was  imprisoned  and  then  expelled, 
not  because  he  came  to  Switzerland  for  the  purpose  of  gathering 
information,  but  because  he  was  trying  to  foment  a  disturbance; 

"Third,  that  a  friendly  discussion  and  the  exchange  of  opinions 
would,  we  consider,  have  brought  these  facts  out  clearly. 

"The  Federal  Council  cannot  admit  the  justice  of  the  deduc- 


144  TERMINATION  OF  TREATIES 

tions  that  His  Excellency  Prince  Bismarck  draws  from  this  in- 
cident. On  the  contrary,  the  Federal  Council  considers  that  in 
acting  to  make  clear  its  firm  intention  to  put  an  end  in  Swiss 
territory  to  disorders,  whether  factitious  or  real,  it  is  really  acting 
in  the  interests  of  the  two  countries  properly  understood. 

"In  his  dispatch  the  Chancellor  main  tains  his  view  in  regard  to 
the  meaning  of  article  2  of  the  treaty  of  settlement. 

"The  Federal  Council  regrets  profoundly  to  note  the  appear- 
ance of  an  interpretation  of  the  treaty  which  has  not,  until  the 
recent  communication  of  the  German  Government,  ever  been  the 
subject  of  discussion  between  the  two  countries.  Even  if  we  con- 
sider that  the  literal  meaning  of  article  2  is  capable  of  a  twofold 
interpretation,  the  German  Government,  if  it  would  have  its  own 
accepted,  should  show  that  it  corresponds  substantially  to  the  will 
of  the  contracting  parties  at  the  moment  when  the  treaty  was 
concluded.  But  as  to  this  [will  of  the  parties],  there  can  be  no 
room  for  doubt;  the  message  of  the  Federal  Council  to  the  as- 
sembly relative  to  our  treaty  of  settlement  with  Germany  (June  3, 
1876);  the  report  of  the  Council  of  the  States  (June  20,  1876); 
and  finally  the  memorandum  upon  the  same  matter,  of  the  Ger- 
man Chancellor  to  the  Reichstag  (November  18,  1876)  prove 
clearly  and  concordantly  that  the  two  governments  did  not  in- 
tend to  restrict  their  right  to  receive  within  their  territory  whom 
they  chose,  but  that  their  only  purpose  was  to  fix  the  conditions, 
upon  compliance  with  which  sojourn  or  settlement  within  the 
territory  of  either  state  might  not  be  refused  to  citizens  of  the 
other. 

"To  cite  but  a  single  document,  this  is  what  the  Chancellor's 
memorandum  says  relative  to  article  2  of  the  treaty  of  settlement: 

[Translated  from  the  German  text.]  "'Article  2  defines  the 
papers  which  German  citizens  may  be  required  to  produce 
upon  demand  [auf  Erfordern]  in  order  to  be  allowed  to  re- 
side in  Switzerland  or  to  settle  there.  In  this  respect  no  more 
will  be  required  of  Germans,  than  of  citizens  of  the  Swiss 
Cantons.' 

"The  words  'upon  demand'  [auf  Erfordern},  to  make  sense,  can 
evidently  refer  only  to  the  Swiss  authorities.  They  show  clearly 


THE  WOHLGEMUTH  AFFAIR  145 

that  in  the  opinion  of  the  author  of  this  message  to  the  Reichstag 
citizens  of  the  German  Empire  must,  in  order  to  reside  in  Switzer- 
land, be  ready  to  exhibit  the  papers  prescribed  when  they  are 
called  for,  but  that  the  Swiss  authorities  are  not  obliged  to  re- 
quire them. 

"This  is  also  apparent  from  the  history  of  the  negotiations  of 
our  treaty  of  settlement  with  Germany,  which  was  based  upon  sim- 
ilar treaties  concluded  by  Switzerland  with  the  Grand  Duchy 
of  Baden  October  31,  1863,  with  France  June  30,  1864,  with 
Wurtemberg  March  18,  1869.  Article  4  of  the  treaty  with  Wiir- 
temberg  says  that,  to  obtain  permission  to  settle  in  either  state, 
it  suffices  to  deposit  the  certificate  of  nationality  [acte  d'origine] 
and  a  certificate  testifying  that  the  individual  is  of  good  charac- 
ter and  not  a  pauper. 

"There  is  no  mention  of  any  obligation  for  either  government 
to  require  these  certificates.  The  Swiss  negotiators  [delegues]  pro- 
posed the  very  exacting  conditions  contained  in  the  treaty  of 
April  27, 1876,  so  as  to  make  it  clear  that  Germans  could  not  escape 
the  requirements  of  the  Swiss  law  relative  to  supervision  over 
aliens  and  so  as  to  conform  to  the  terms  of  article  2  of  our  treaty 
of  June  30,  1864,  with  France.  This  article  2  of  the  treaty  of 
June  30,  1864,  with  France  reads  as  follows: 

"'To  acquire  a  domicile  or  to  settle  in  Switzerland  French- 
men  must  be  provided  with  a  certificate  of  registration  giving 
their  nationality,  which  will  be  issued  to  them  by  the  French 
Embassy  after  they  have  exhibited  certificates  of  good 
character  and  the  other  papers  required.' 

"The  essential  provisions  of  the  two  treaties  are  thus  seen  to 
be  identical,  yet  France,  like  the  German  Chancellor  in  1876, 
never  understood  the  stipulations  of  this  article  as  constituting 
an  obligation  imposed  upon  Switzerland  to  restrict  the  permission 
of  residence  to  those  Frenchmen  exclusively  who  should  have 
complied  with  the  conditions  therein  enumerated,  but  considered 
it  as  giving  Switzerland  the  right  so  to  act.  The  same  is  true  of 
the  other  countries  with  whom  we  have  similar  treaties. 

"In  view  of  the  above  considerations  we  cannot  refrain  from 
expressing  our  surprise  to  hear  it  affirmed  that  even  in  1876  the 


146  TERMINATION  OF  TREATIES 

German  Government  considered  it  important  to  prevent  Switzer- 
land, by  the  stipulations  of  the  treaty  of  settlement,  from  receiv- 
ing all  German  subjects  who  did  not  get  on  with  the  German 
Government.  If  this  desire  [on  Germany's  part]  existed,  it  re- 
mained a  secret.  The  German  negotiator  did  not  express  it  and 
article  2  of  the  treaty  does  not  give  expression  to  it.  Such  an 
intention  would  furthermore  have  been  contrary  to  the  spirit  of 
the  treaty,  the  object  of  which  was  not  to  hinder  but  to  facilitate 
the  reciprocal  settlement  of  citizens  of  each  of  the  states  within 
the  territories  of  the  other,  by  assuring  them  the  enjoyment  of  the 
maximum  of  rights  and  advantages  possible  (articles  3  and  6). 

"We  must  repel  the  imputation  that  we  have  not  observed  the 
terms  of  the  treaty  of  April  27,  1876,  and  absolutely  contest  the 
right  of  the  German  Government  to  declare  the  treaty  at  an  end 
because  of  our  failure  to  observe  it.  In  regard  to  the  manner  in 
which  the  treaty  has  been  carried  out  by  the  parties  we  shall 
only  draw  attention  to  the  following  considerations: 

"In  the  first  place,  precise  information  permits  us  to  affirm  that 
a  certificate  of  good  character  has  not  been  required  in  every  in- 
stance of  Swiss  citizens  settled  in  Germany. 

"Further,  it  is  to  be  noted  that  the  Federal  Council  has  made 
known  sufficiently  its  method  of  applying  article  2  through  vari- 
ous official  publications,  among  others  the  circular  of  September 
13,  1880,  which  gave  rise  to  a  diplomatic  correspondence  with  the 
German  Legation  at  Berne,  and  again  through  the  supplementary 
circular  of  February  16,  1881,  and  repeatedly  through  the  Coun- 
cil's annual  report  [rapport  annuel  de  gestion].  Since  these  docu- 
ments were  transmitted  to  the  German  Legation  as  soon  as  they 
appeared,  without  ever  giving  rise  to  any  objection  to  their  con- 
tents, it  is  impossible  to  conceive  how  the  German  Government 
now  asserts  that  it  has  only  learned  what  is  our  interpretation  of 
the  treaty  from  our  note  of  June  15. 

"Finally,  we  ought  to  make  it  a  subject  of  remark  that  our 
police  of  the  cantons  have  cause  to  be  exacting  in  regard  to  the 
certificates  carried  by  aliens  in  order  to  prevent  an  invasion  of 
suspected  persons  who  so  easily  become  a  danger  and  a  burden 
to  our  country.  This  was  the  consideration  which  occupied 
us  when  the  terms  of  the  treaty  of  April  26,  1876,  were  drafted. 


THE  WOHLGEMUTH  AFFAIR  147 

Without  placing  too  great  store  by  the  certificates  of  good  char- 
acter, which  are  often  delivered  in  such  a  way  as  to  deprive  them 
of  any  serious  credence,  —  for  the  worst  class  of  anarchists  and 
revolutionists  with  their  papers  perfectly  in  order  are  sometimes 
unsuspectedly  admitted,  —  we  are,  nevertheless,  far  from  wishing 
to  renounce  this  guarantee  intended  for  our  protection.  Indeed 
we  are  glad  to  note  that  the  authorities  of  the  cantons  may  in 
future  require  a  still  more  rigorous  application  [production]  of 
this  guarantee  without  the  risk  of  having  the  German  Government 
itself  make  a  request  for  leniency  in  the  execution  of  this  clause 
of  the  treaty. 

"The  undersigned  hopes  that  this  statement  of  the  facts  in  the 
case  may  serve  to  convince  His  Highness  the  Chancellor  that  the 
Federal  Council  never  had  the  intention,  with  which  it  is  cred- 
ited, of  making  the  admission  of  Germans  into  Switzerland  de- 
pend upon  the  permission  of  the  German  Government,  nor  did 
it  expect  to  claim  for  itself  a  reciprocal  right  in  respect  to  the  Swiss 
who  take  up  their  residence  in  Germany.  Although  it  is  true,  as 
the  dispatch  of  June  26  remarks,  that  every  international  treaty, 
to  the  extent  of  the  rights  it  creates  and  the  obligations  it  imposes, 
implies  the  relinquishment  by  each  of  the  contracting  parties  of  a 
part  of  its  sovereignty,  it  is  not  less  certain  that  there  are  some 
attributes  of  her  sovereignty  that  Switzerland  has  not,  nor  ever 
will,  of  her  own  free  will,  agree  to  abandon  by  treaty  stipulation. 
The  preservation  of  the  right  of  asylum  is  one  of  these  attributes, 
as  is  shown  by  the  whole  course  of  Swiss  history.  This  constitutes 
one  of  the  principles  from  which  we  cannot  depart,  and  by  which 
we  shall  be  governed  if  we  enter  into  negotiations  with  Germany 
for  the  conclusion  of  a  new  treaty  of  settlement.  This  reminder 
appears  necessary  to  us. 

"In  his  preceding  communications,  the  undersigned  has  dis- 
cussed the  means  proposed  to  prevent  anarchists  and  revolu- 
tionists from  using  Swiss  territory  as  a  base  to  conspire  against 
the  material  security  of  Germany,  and  the  measures  intended  to 
suppress  the  plots  which  unfortunately  occur  in  spite  of  the  pre- 
cautions taken. 

"The  Federal  Council  can  only  repeat  the  categorical  declara- 
tions which  it  has  made  in  reference  to  this  subject.  Recognizing 


148  TERMINATION  OF  TREATIES 

to  their  fullest  extent  the  international  duties  which  rest  upon  the 
Confederation  as  well  as  upon  every  government  desirous  of  main- 
taining good  relations  with  friendly  states,  the  Federal  Council 
has,  in  every  instance,  given  evidence,  by  its  acts;  of  its  firm  inten- 
tion not  to  tolerate  in  Switzerland  any  acts  contrary  to  the  law  of 
nations  or  to  the  respect  which  states  owe  to  one  another.  This 
action  is  but  the  expression  of  the  will  of  the  Swiss  people,  mani- 
fested in  this  particular  instance  by  the  unanimous  votes  of  the 
Federal  Chambers,  when  appeal  was  made  to  their  legislative 
concurrence. 

"At  the  present  time,  thanks  to  the  vigorous  measures  employed 
in  the  last  few  years,  no  recognized  anarchist  or  revolutionist 
leader  is  settled  or  allowed  in  Switzerland.  The  creation  of  a 
central  bureau  of  political  supervision  [police  politique}  conse- 
quent upon  the  decision  taken  by  the  Chambers  at  their  last 
session  will  make  it  possible  the  better  to  keep  track  of  and  re- 
press, in  so  far  as  is  allowed  by  our  constitution,  all  illicit  or  dan- 
gerous activity,  whether  in  the  press  or  on  the  part  of  societies 
and  meetings,  when  of  a  nature  to  menace  the  maintenance  of 
good  relations  with  other  nations. 

"The  Federal  Council  does  not  doubt  that  these  explanations 
will  be  of  a  nature  completely  to  reassure  the  German  Govern- 
ment and  convince  it  that  there  is  no  need  of  having  recourse 
to  exceptional  measures  contrary  to  the  interests  of  the  two 
states.  That  we  insist  with  so  much  firmness  upon  the  respect 
for  our  rights  is  because  our  intention  is  not  less  firm  to  fulfill 
scrupulously  our  international  duties,  especially  in  regard  to 
Germany,  with  whom  we  have  always  been  desirous  of  maintain- 
ing the  best  relations. 

"The  undersigned  begs  His  Excellency,  M.  von  Billow,  to 
bring  that  which  precedes  to  the  attention  of  His  Highness, 
Prince  Bismarck,  and  to  accept  the  assurance  of  his  considera- 
tion." 

After  the  receipt  of  the  Swiss  note  of  July  13,  the  German  Gov- 
ernment, on  July  20,  formally  denounced  the  treaty  of  April  27, 
1876,  in  accordance  with  its  article  n,  so  that  it  expired  one  year 
from  that  date,  on  July  20,  1890. 

On  July  31,  the  German  Government  hi  a  note  to  the  Swiss 


THE  EFFECT  OF  WAR  ON  TREATIES  149 

Government  maintained  its  views  as  previously  set  forth  and 
considered  that  the  Socialists  could  not  be  looked  upon  as  political 
refugees  enjoying  an  asylum  in  Switzerland,  but  that  they  had 
gone  there  of  their  own  free  will  for  the  purpose  of  intriguing 
against  the  German  Empire.  The  question  of  Switzerland's  viola- 
tion of  her  neutralization  was  not  mentioned,  but  the  Chancellor 
expressed  the  hope  that  a  new  treaty  of  settlement  might  be  en- 
tered into.  A  new  treaty  was  in  fact  concluded  to  replace  the 
old  one  before  the  date  of  its  expiration. 

(Archives  Diplomatiques,  2d  series,  vol.  xxxi,  pp.  332-41. 
Schulthess:  Europtiischer  Geschichtskalender  [1889],  vol.  xxx,  pp. 
96,  97,  104-05,  112,  143-44,  259;  C.  K.  Hoffmann:  Het  Conflict 
tusschen  Zwitserland  en  Duitschland  in  1889  [Leiden,  1891].  Cf. 
also  Hilty,  Politisches  Jahrbuch  der  schweizerschen  Eidgenossenschaft 
[1889],  pp.  477-95;  [1890],  pp.  628-34,  where  the  question  is  ably 
discussed  in  German  from  the  Swiss  point  of  view,  but  in  an  im- 
partial spirit.) 


THE  EFFECT  OF  WAR  ON  TREATIES 

IT  is  a  well-recognized  principle  that  war  terminates  certain 
treaties.  This  subject  does  not  fall  within  the  scope  of  this  vol- 
ume. 


PART   II 

THE  LAW  OF  NATIONS:  SUBSTANTIVE  INTERNA- 
TIONAL LAW  RECOGNIZED  BY  GOVERNMENTS 
AS  A  RULE  OF  CONDUCT  BINDING  UPON  THEM 
AND  OBSERVED  BY  THEM  IN  PRACTICE 


CHAPTER   IV 
THE  EQUALITY  OF  STATES 


§  18.  SOVEREIGNTY,  INDEPENDENCE,  AND   EQUALITY 


THE  first  thing  that  strikes  the  observant  student  of  the  prac- 
tice of  diplomacy  is  not  that  alleged  equality  of  states  which  is 
made  the  basis  of  all  treatises  on  the  law  of  nations.  On  the 
contrary,  at  every  turn  he  meets  countless  instances  where  in- 
equalities are  recognized  in  the  relations  between  states.  Here 
it  is  necessary  to  make  a  distinction.  Whenever  a  matter  falls 
within  the  province  of  international  law,  it  means  that  all  states, 
great  and  small,  may  expect  to  be  equal  as  regards  its  application 
to  their  affairs.  In  the  words  of  the  great  Marshall,  "No  prin- 
ciple of  general  law  is  more  universally  acknowledged  than  the 
perfect  equality  of  nations.  Russia  and  Geneva  have  equal  rights. 
It  results  from  this  equality  that  no  one  can  rightfully  impose  a 
rule  on  another.  Each  legislates  for  itself,  but  its  legislation 
can  operate  on  itself  alone."  But  in  the  realm  of  politics, 
where  states  great  and  small  debate  and  maintain  their  differ- 
ent views,  the  very  fact  that  they  are  concerned  with  politics 
or  policies  means  that  there  is  as  yet  no  agreement  among  the 
nations  which  can  be  incorporated  into  the  body  of  inter- 
national law.  In  such  instances,  the  power  of  the  government  of 
the  mightier  state  makes  its  views  felt  in  shaping  the  rule  of  the 
law  of  nations,  which  shall  be  agreed  upon  in  the  end  to  settle 
the  conflict  of  policies  and  to  regulate  the  question  in  dispute. 
As  Westlake  has  so  well  said:  "Therefore  from  time  to  time  new 
rules  have  to  be  proposed  on  reasonable  grounds,  acted  on  pro- 
visionally, and  ultimately  adopted  or  rejected  as  may  be  deter- 
mined by  experience,  including  the  effect,  not  less  important 
in  international  than  in  national  affairs,  of  interest  coupled  with 


154  SOVEREIGNTY,  INDEPENDENCE,  EQUALITY 

preponderating  power."  (Westlake :  International  Law,  part  I, 
Peace  [Cambridge,  1910],  p.  15.) 

i  It  would  indeed  be  a  most  top-heavy  system  which  should 
attempt  to  establish  law  without  regard  to  the  strength  of  opinion 
upon  which  it  must  rely  for  its  maintenance.  In  due  course,  as 
the  recognized  principles  are  better  understood,  and  as  the 
spirit  of  equitable  compromise,  which  is  the  basis  for  agreement 
upon  all  new  law  or  regulation,  is  more  skillfully  and  reason- 
ably applied,  the  extension  of  international  law  will  grow  apace. 
Let  us  not  be  impatient  and  attempt  to  be  over-hasty  in  this 
process,  for  the  successful  accomplishment  of  which  so  much 
wisdom  and  so  much  experience  are  necessary.  If  we  clothe  policy 
with  the  robes  of  law,  policy  it  will  still  remain,  but  the  effect 
may  be  to  discredit  the  principles  of  the  real  law  of  nations  which 
lie  at  the  very  foundation  of  individual  security. 


(a)  Sovereignty 

AN  ARREST  IN  CANADA  (1863) 

ON  April  15, 1863,  Mr.  Seward,  Secretary  of  State  of  the  United 
States,  wrote  to  Mr.  Stanton,  Secretary  of  War:  "I  have  carefully 
examined  the  report  of  John  A.  Haddock,  captain  commanding 
Company  E,  35th  Regiment  of  New  York  Volunteers,  concerning 
his  arrest  of  Ebenezer  Tyler,  a  deserter  from  the  forces  of  the 
United  States,  within  unquestioned  Canadian  territories  of  Great 
Britain.  The  violation  of  the  sovereignty  of  a  friendly  State 
was  doubtless  committed  under  the  influence  of  an  earnest  zeal 
for  the  interests  of  the  United  States,  but  that  motive  cannot  di- 
minish the  wrongfulness  of  the  act  or  furnish  excuse  for  this  govern- 
ment to  that  of  Great  Britain.  Having  submitted  the  matter  to 
the  President,  I  am  instructed  by  him  to  disavow  with  regret  the 
proceeding  of  Captain  Haddock,  and  to  inform  the  British  Gov- 
ernment that  the  captain  will  be  dismissed  from  the  public  service 
and  that  the  deserter  Ebenezer  Tyler  will  be  discharged  from  his 
enlistment  in  the  volunteer  forces  of  the  United  States." 

(Moore:  Digest  of  International  Law,  vol.  n,  p.  370.) 


THE  ZAPPA  INCIDENT  155 

(b)  Independence 


THE  ZAPPA  INCIDENT  (1891) 

THE  most  remarkable  incident  that  has  occurred  of  late  years 
on  the  question  is  that  between  Greece  and  Roumania,  of  the 
succession  to  Vanghely  Zappa,  by  birth  a  Greek  of  Ottoman 
nationality,  but  who  had  obtained  what  is  called  the  little  natu- 
ralization in  Roumania.  He  bequeathed  his  immovable  property  to 
a  public  purpose  in  Greece,  subject  to  a  life  interest  which  ended 
in  1891,  whereupon  the  Greek  Government  claimed  to  be  put  in 
possession  of  the  inheritance  in  Roumania  by  the  Greek  Consulate 
there.  At  the  same  time  the  nephews  of  the  testator  claimed  the 
possession  in  the  national  court  of  first  instance  at  Bukharest,  on 
the  ground  that  only  Roumanians  were  allowed  by  a  law  of  1879 
to  acquire  immovables  in  country  districts,  and  then  the  Rou- 
manian Government  intervened  in  the  same  court  to  claim  the  suc- 
cession as  vacant.  The  Greek  Government,  by  a  note  of  May 
16/28,  1892,  expressed  "its  surprise  that  the  Roumanian  state  per- 
sisted in  desiring  to  bring  differences  between  states  to  the  judg- 
ment of  the  -national  courts,"  and  withdrew  its  representative 
from  Bukharest,  a  step  which  led  to  a  long  interruption  of  diplo- 
matic intercourse  between  the  two  states,  each  of  which  published 
opinions  given  in  its  favor  by  eminent  international  jurists.  The 
faculty  of  law  of  the  University  of  Berlin  gave  an  opinion  which 
is  specially  worthy  of  mention.  It  was  that  national  courts  are 
not  competent  as  between  states  in  matters  of  civil  right  arising 
out  of  international  treaties,  but  are  so  in  matters  arising  from 
pure  private  law,  so  far  as  regards  the  forum  rei  sita,  the  forum 
hereditatis,  and  the  forum  prorogatum. 

(Extract  from  Westlake:  International  Law,  part  I,  Peace 
[Cambridge,  1910],  p.  251.) 


156  SOVEREIGNTY,  INDEPENDENCE,  EQUALITY 

UNDERBILL  v.  HERNANDEZ 

The  Supreme  Court  of  the  United  States,  1897 

IN  the  early  part  of  1892  a  revolution  was  initiated  in  Vene- 
zuela against  the  administration  thereof,  which  the  revolutionists 
claimed  had  ceased  to  be  the  legitimate  government.  .  .  . 
General  Hernandez  belonged  to  the  anti- Administration  party, 
and  commanded  its  forces  in  the  vicinity  of  Ciudad  Bolivar.  In 
October  the  party  in  revolt  had  achieved  success  generally,  taking 
possession  of  the  capital  of  Venezuela  October  6,  and  on  October 
23,  1892,  the  Crespo  Government,  so  called,  was  formally  recog- 
nized as  the  legitimate  Government  of  Venezuela  by  the  United 
States. 

George  F.  Underbill,  ...  a  citizen  of  the  United  States,  who 
had  constructed  a  waterworks  system  for  the  city  of  Bolivar  under 
a  contract  with  the  government  and  was  engaged  in  supplying 
the  place  with  water,  .  .  .  some  time  after  the  entry  of  General 
Hernandez,  .  .  .  applied  to  him  as  the  officer  in  command  for  a 
passport  to  leave  the  city.  Hernandez  refused  this  request,  and 
requests  made  by  others  in  Underbill's  behalf,  until  October  18, 
when  a  passport  was  given  and  Underbill  left  the  country. 

This  action  was  brought  to  recover  damages  for  the  detention 
caused  by  reason  of  the  refusal  to  grant  the  passport;  for  the 
alleged  confinement  of  Underbill  to  his  own  house;  and  for  cer- 
tain alleged  assaults  and  affronts  by  the  officers  of  Hernandez' 
army. 

The  cause  was  tried  in  the  Circuit  Court  of  the  United  States 
for  the  Eastern  District  of  New  York,  and  on  the  conclusion  of 
plaintiff 's  case,  the  Circuit  Court  ruled  that  upon  the  facts  plaintiff 
was  not  entitled  to  recover,  and  directed  a  verdict  for  defendant, 
on  the  ground  that  "because  the  acts  of  defendant  were  those  of 
a  military  commander,  representing  a  de  facto  government  in  the 
prosecution  of  a  war,  he  was  not  civilly  responsible  therefor." 
Judgment  having  been  rendered  for  defendant,  the  case  was  taken 
to  the  Circuit  Court  of  Appeals,  and  by  that  court  affirmed  upon 
the  ground  "that  the  acts  of  the  defendant  were  the  acts  of  the 
Government  of  Venezuela,  and  as  such  are  not  properly  the  sub- 
ject of  adjudication  in  the  courts  of  another  government."  (26 


UNDERBILL  v.  HERNANDEZ  157 

U.S.  App.  573.)  Thereupon  the  cause  was  brought  to  this  court 
on  certiorari.  .  .  . 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered  the 
opinion  of  the  court: 

"  Every  sovereign  state  is  bound  to  respect  the  independence  of 
every  other  sovereign  state,  and  the  courts  of  one  country  will 
not  sit  in  judgment  on  the  acts  of  the  government  of  another  done 
within  its  own  territory.  Redress  of  grievances  by  reason  of  such 
acts  must  be  obtained  through  the  means  open  to  be  availed  of 
by  sovereign  powers  as  between  themselves. 

"Nor  can  the  principle  be  confined  to  lawful  or  recognized  gov- 
ernments, or  to  cases  where  redress  can  manifestly  be  had  through 
public  channels.  The  immunity  of  individuals  from  suits  brought 
in  foreign  tribunals  for  acts  done  within  their  own  states,  in  the 
exercise  of  governmental  authority,  whether  as  civil  officers  or 
as  military  commanders,  must  necessarily  extend  to  the  agents 
of  governments  ruling  by  paramount  force  as  matter  of  fact. 
Where  a  civil  war  prevails,  that  is,  where  the  people  of  a  country 
are  divided  into  two  hostile  parties,  who  take  up  arms  and  oppose 
one  another  by  military  force,  generally  speaking,  foreign  nations 
do  not  assume  to  judge  of  the  merits  of  the  quarrel.  If  the  party 
seeking  to  dislodge  the  existing  government  succeeds,  and  the 
independence  of  the  government  it  has  set  up  is  recognized,  then 
the  acts  of  such  government  from  the  commencement  of  its  exist- 
ence are  regarded  as  those  of  an  independent  nation.  If  the 
political  revolt  fails  of  success,  still  if  actual  war  has  been  waged, 
acts  of  legitimate  warfare  cannot  be  made  the  basis  of  individual 
liability.  [References  omitted.] 

"Revolutions  or  insurrections  may  inconvenience  other  na- 
tions, but  by  accommodation  to  the  facts  the  application  of 
settled  rules  is  readily  reached.  And  where  the  fact  of  the  exist- 
ence of  war  is  in  issue  in  the  instance  of  complaint  of  acts  com- 
mitted within  foreign  territory,  it  is  not  an  absolute  prerequisite 
that  that  fact  should  be  made  out  by  an  acknowledgment  of 
belligerency,  as  other  official  recognition  of  its  existence  may  be 
sufficient  proof  thereof.  (The  Three  Friends,  166  U.S.  i) 

"In  this  case,  the  archives  of  the  State  Department  show  that 
civil  war  was  flagrant  in  Venezuela  from  the  spring  of  1892;  that 


158  SOVEREIGNTY,  INDEPENDENCE,  EQUALITY 

the  revolution  was  successful;  and  that  the  revolutionary  govern- 
ment was  recognized  by  the  United  States  as  the  government  of 
the  country,  it  being,  to  use  the  language  of  the  Secretary  of  State 
in  a  communication  to  our  Minister  to  Venezuela,  'accepted  by 
the  people,  in  the  possession  of  the  power  of  the  nation  and  fully 
established.' 

"That  these  were  facts  of  which  the  court  is  bound  to  take 
judicial  notice,  and  for  information  as  to  which  it  may  consult 
the  Department  of  State,  there  can  be  no  doubt.  (Jones  v. 
United  States,  137  U.S.  202;  Mighell  v.  StUtan  of  Jahore,  [1894] 
i  Q.B.  149.) 

"It  is  idle  to  argue  that  the  proceedings  of  those  who  thus 
triumphed  should  be  treated  as  the  acts  of  banditti  or  mere  mobs. 

"We  entertain  no  doubt  upon  the  evidence  that  Hernandez 
was  carrying  on  military  operations  in  support  of  the  revolutionary 
party.  It  may  be  that  adherents  of  that  side  of  the  controversy 
in  the  particular  locality  where  Hernandez  was  the  leader  of  the 
movement  entertained  a  preference  for  him  as  the  future  executive 
head  of  the  nation,  but  that  is  beside  the  question.  The  acts 
complained  of  were  the  acts  of  a  military  commander  represent- 
ing the  authority  of  the  revolutionary  party  as  a  government, 
which  afterwards  succeeded  and  was  recognized  by  the  United 
States.  We  think  the  Circuit  Court  of  Appeals  was  justified  in 
concluding  'that  the  acts  of  the  defendant  were  the  acts  of  the 
Government  of  Venezuela,  and  as  such  are  not  properly  the 
subject  of  adjudication  in  the  courts  of  another  government.' 

"The  decisions  cited  on  plaintiff's  behalf  are  not  in  point. 
Cases  respecting  arrests  by  military  authority  in  the  absence 
of  the  prevalence  of  war;  or  the  validity  of  contracts  between 
individuals  entered  into  in  aid  of  insurrection;  or  the  right  of 
revolutionary  bodies  to  vex  the  commerce  of  the  world  on  its 
common  highway  without  incurring  the  penalties  denounced  on 
piracy;  and  the  like,  do  not  involve  the  questions  presented  here. 

"We  agree  with  the  Circuit  Court  of  Appeals,  that '  the  evidence 
upon  the  trial  indicated  that  the  purpose  of  the  defendant  in  his 
treatment  of  the  plaintiff  was  to  coerce  the  plaintiff  to  operate 
his  waterworks  and  his  repair  works  for  the  benefit  of  the  com- 
munity and  the  revolutionary  forces,'  and  that  'it  was  not  suf- 


THE  BRAZILIAN  COFFEE  CASE  159 

ficient  to  have  warranted  a  finding  by  the  jury  that  the  defendant 
was  actuated  by  malice  or  any  personal  or  private  motive;'  and 
we  concur  in  its  disposition  of  the  rulings  below.  The  decree  of  the 
Circuit  Court  is  affirmed." 

(Extract  from  United  States  Reports,  vol.  168,  pp.  250-54,  with 
reporter's  statement  of  facts  abbreviated.) 


THE  BRAZILIAN  COFFEE   CASE   (1912) 

IN  this  suit,  which  was  begun  in  1912  in  the  District  Court  for 
the  Southern  District  of  New  York  as  United  States  v.  Herman 
Siekken,  but  which  was  afterwards  discontinued,  the  chief  point 
at  issue  was  the  power  of  the  Government  of  the  United  States 
to  proceed  against  the  property  of  a  foreign  state,  warehoused  in 
New  York,  on  the  ground  of  violation  of  the  Sherman  Anti-Trust 
Act.  The  facts  were  as  follows: 

More  than  three-fourths  of  the  world's  coffee  is  raised  in  Brazil, 
the  greater  part  of  it  in  the  State  of  Sao  Paulo.  In  1006  there 
was  an  abnormal  crop,  almost  equal  to  the  production  of  the  two 
preceding  years  put  together,  with  the  result  that  the  coffee 
market  was  demoralized  and  the  planters  threatened  with  bank- 
ruptcy. To  remedy  conditions,  the  Government  of  Sao  Paulo 
formed  the  so-called  "valorization  scheme,"  whereby  the  State 
was  to  take  over  such  part  of  the  surplus  coffee  as  could  not  other- 
wise be  marketed  to  advantage,  withhold  it  from  the  market  for 
the  time  being,  and  regulate  its  sale  later.  The  plan  further  pro- 
vided for  the  limitation  of  the  acreage  under  coffee  cultivation, 
for  the  fixation  of  a  minimum  price  in  Brazilian  markets,  for  the 
checking  of  exportation  of  inferior  coffee,  and  for  the  raising  of 
loans  on  the  security  of  the  coffee  purchased. 

After  some  temporary  financial  operations,  Sao  Paulo  in  1908 
borrowed  £15,000,000  from  London  and  Paris  bankers  "to 
liquidate  the  operations  effected  for  the  valorization  of  coffee." 
This  loan  was  guaranteed  by  the  Federal  Government  of  Brazil 
and  was  secured  by  the  coffee  still  unsold  and  by  an  export  tax  on 
coffee  of  five  francs.  The  agreement  with  the  bankers  called  for 
the  sale  of  this  coffee  within  ten  years,  under  the  control  of  a  com- 


160  SOVEREIGNTY,  INDEPENDENCE,  EQUALITY 

mittee  of  seven,  meeting  in  London,  one  of  whom  was  a  represen- 
tative of  the  Government  of  Sao  Paulo  with  power  to  veto  all 
decisions  of  the  committee.  Approximately  7,000,000  bags  of 
coffee  were  delivered  to  the  committee,  about  a  fourth  of  which 
was  assigned  for  sale  in  the  United  States.  All  sales  were  to  be 
made  in  the  name  of  the  Government  of  Sao  Paulo,  which  was 
under  obligation  to  sell  a  minimum  amount  every  year,  and  more 
if  market  conditions  warranted. 

On  an  examination  into  the  facts,  the  Department  of  Justice 
of  the  United  States  considered  that  the  operations  of  the  commit- 
tee were  in  restraint  of  trade  and  suit  was  entered  against  the 
defendant,  Herman  Sielcken,  as  the  representative  of  the  com- 
mittee in  the  United  States.  As  a  preliminary  step,  the  Attorney- 
General  sought,  under  the  Sherman  Act,  to  seize  950,000  bags  of 
coffee,  stored  in  New  York  and  controlled  by  the  committee,  and 
to  hold  this  coffee  pending  the  result  of  the  suit,  but  the  tempo- 
rary injunction  was  refused. 

In  its  petition,  the  government  argued  that  the  facts  pleaded 
constituted  a  violation  of  the  Anti-Trust  Act.  Acts  and  agree- 
ments unlawful  under  statutes  of  the  United  States  could  not 
become  lawful  because  they  were  "not  unlawful  in  Brazil  and 
were  participated  in  by  a  foreign  state."  Though  courts  would 
not,  in  general,  exercise  jurisdiction  over  the  person  or  property 
of  a  foreign  sovereign,  such  jurisdiction  would  be  assumed  if  "the 
foreign  state  engages  in  a  business  transaction,  as  its  rights  then 
are  not  superior  to  those  of  an  individual  citizen."  Accordingly, 
the  petition  prayed: 

"i.  That  the  acts  set  forth  in  the  petition  be  declared  to  be 
violative  of  the  Anti-Trust  Act,  and  that  all  claims,  either 
to  the  title  or  possession  of  the  coffee,  be  declared  illegal 
and  void. 

"2.  That  the  acts  of  the  committee  in  the  United  States  be 
declared  unlawful.  (This  would  include  all  the  sales  here- 
tofore made.) 

"3.  That  the  defendant,  Sielcken,  be  restrained  from  further 
withholding  any  of  the  American  coffee  from  the  market  or 
from  imposing  conditions  in  its  sale. 


THE  BRAZILIAN  COFFEE  CASE  161 

"4  and  5.  That  a  preliminary  injunction  be  granted  and  that  a 
receiver  be  appointed,  with  power  to  sell." 

On  demurrer,  the  brief  for  the  defendant  set  forth  the  follow- 
ing points:1 

1.  The  courts  of  the  United  States  had  no  jurisdiction  because 
the  property  of  a  foreign  state  was  involved.    "Sovereign  states 
stand  on  a  basis  of  absolute  equality,  and  all  differences  between 
them  must  be  adjusted  through  the  ordinary  channels  of  diplo- 
macy, by  the  executive  departments  of  the  governments.     One 
sovereign  will  not  subject  another  to  the  indignity  of  requiring 
him  to  answer  for  his  acts  in  the  courts;  and  it  makes  no  difference 
whether  the  question  involved  concerns  the  person  or  property 
of  the  sovereign."    In  this  case,  the  coffee  was  the  property  of 
Sao  Paulo  and  guaranteed  by  the  Republic  of  Brazil.     "It  can, 
therefore,  no  more  be  interfered  with  by  the  courts  of  this  country 
than  could  the  Ambassador  of  Brazil,  if  he  were  here  in  person 
attempting  to  do  an  act  contrary  to  the  laws  of  this  country." 
The  Sherman  Act  was  no  more  applicable  to  a  foreign  sovereign 
than  any  provision  of  the  Criminal  Code,  nor  could  the  property 
of  the  Brazilian  state  be  seized  and  condemned  to  sale  "simply 
because  it  is  incidentally  found  in  our  harbor,  in  the  custody  of 
an  agent  of  that  Republic,  who  appears  by  the  complaint  to  be 
acting  strictly  within  his  orders  received  from  it." 

2.  Nothing  in  violation  of  the  Sherman  Act  had  been  done  in 
the  United  States.    The  economic  policy  adopted  by  Sao  Paulo 
was  lawful  in  Brazil  and  every  act  was  controlled  by  the  law  of 
the  place  where  it  was  done.    If  it  gave  rise  to  no  rights  or  liabili- 
ties within  that  jurisdiction,  "no  rights  can  be  asserted  or  liabili- 
ties enforced  in  consequence  of  that  act  in  the  courts  of  another 
jurisdiction,  even  though  the  act  would  have  given  rise  to  rights 
and  liabilities  if  done  there."    This  had  been  the  uniform  rule  in 
the  courts  of  the  United  States.    (See  American  Banana  Co.  v. 
United  Fruit  Co.,  213  U.S.  347.)    The  only  act  done  affecting  the 
United  States  was  the  shipment  of  the  coffee  to  New  York  for  sale. 
That  was  not  illegal,  nor  was  it  illegal  to  hold  property  lawfully 

1  Counsel  for  the  defendant  were  Messrs.  Joseph  H.  Choate  and  John  A.  Carver. 
The  brief  has  been  kindly  furnished  by  Mr.  Carver. 


1 62  SOVEREIGNTY,  INDEPENDENCE,  EQUALITY 

acquired  until  such  time  as  it  could  be  sold  at  an  advantageous 
price. 

3.  There  was  defect  of  parties  defendant.  The  two  states  whose 
property  rights  were  involved  had  not  had  an  opportunity  to  be 
heard.  "To  seize  this  coffee  and  sell  it  at  a  forced  sale  would  be 
such  an  act  of  overt  hostility  that  no  self-respecting  government 
could  fail  to  resent  it." 

While  the  case  was  pending,  the  government  found  the  scope 
of  the  Sherman  Act  too  narrow  to  admit  of  a  successful  prosecu- 
tion of  the  suit.  However,  on  the  understanding  that  meanwhile 
the  coffee  remain  unsold,  negotiations  were  opened  with  Brazil 
with  the  result  that  by  agreement  the  "valorized"  coffee  was  put 
on  the  market,  on  condition  that  the  proceedings  instituted  by 
the  Government  of  the  United  States  be  discontinued. 

(American  Journal  of  International  Law  [1912],  vol.  vi,  pp. 
702-06;  Journal  of  Political  Economy  [1913],  vol.  xxi,  pp.  162- 
63 ;  Defendant's  Brief  and  Affidavit.) 


(c)  Equality 


UNITED  STATES  AND   COLOMBIA   (1888) 

ON  April  28,  1888,  Mr.  Bayard,  Secretary  of  State  for  the 
United  States,  wrote  to  Mr.  Walker,  American  Charge  at  Bo- 
gota: "Citizens  of  the  United  States  in  Colombia  are  exempted 
from  paying  any  tax  from  which  the  subjects  or  citizens  of  an- 
other power  are  exempt,  both  by  the  'favored  nation'  clause  of 
our  treaty  of  1846  with  Colombia,  and  by  the  general  principle 
of  the  law  of  nations  which  justifies  this  government  in  insisting 
that  there  shall  be  no  undue  discrimination  against  citizens  of 
the  United  States  wherever  they  may  be  resident." 

(Moore:  Digest  of  International  Law,  vol.  n,  p.  57.) 


RESPECT  FOR  THE  AMERICAN  FLAG  IN  GREECE      163 
(<f)  Respect 


RESPECT  FOR  THE  AMERICAN  FLAG  LN  GREECE 

The  Acting  Secretary  of  State  to  Minister  Moses 

DEPARTMENT  OF  STATE, 
Washington,  June  18,  /pop. 

Sir:  The  Department  is  advised  that  in  Piraeus  the  American 
flag  is  extensively  used  by  Greeks  who  have  returned  from  a 
sojourn  in  America  in  advertisement  of  saloons  and  cigar  stores. 
It  seems  probable  that  this  custom  also  prevails  in  other  parts  of 
Greece.  You  will,  therefore,  bring  this  matter  to  the  attention  of 
the  Foreign  Office,  and  say  that  .the  Department  is  desirous  of  the 
cooperation  of  the  Greek  Government  in  preventing  this  abuse 
and  disgrace  of  the  national  emblem  of  the  United  States,  and 
confidently  trusts  that  measures  looking  toward  this  end  will  be 
taken  or  sanctioned  by  the  Greek  Government. 

In  this  connection  you  will  call  to  the  attention  of  the  Foreign 
Office  a  similar  case  which  arose  in  Brazil  in  the  year  1864,  wherein 
the  American  Minister,  with  the  consent  and  approval  of  the 
Brazilian  Government,  issued  a  circular,  directed  to  the  United 
States  Consuls  under  his  jurisdiction,  prohibiting  the  flying  of 
the  American  flag  in  Brazil  except  by  those  in  official  capacities 
or  by  other  persons  who  should  have  previously  received  the  per- 
mission of  the  United  States  Minister  for  so  doing.  Reference  to 
this  case  will  be  found  in  Moore's  Digest  of  International  Law, 
volume  2,  at  page  135. 

The  Department  expects  that,  in  conjunction  with  the  Foreign 
Office,  you  will  devise  means  to  put  a  stop  to  this  abuse  of  the 
flag  of  the  United  States. 

I  am,  etc.,  HUNTINGTON  WILSON. 

Minister  Moses  to  the  Secretary  of  State 

AMERICAN  LEGATION, 
Athens,  October  18,  1909. 

Sir:  Referring  to  your  instruction  No.  4,  of  June  18  ultimo 
(file  No.  697/43),  I  have  the  honor  to  report  that,  having  called 


164  RECOGNITION 

the  matter  to  the  attention  of  the  Greek  Government,  I  have  re- 
ceived from  the  Minister  for  Foreign  Affairs  a  communication 
upon  the  subject,  a  copy  of  which,  with  translation,  is  enclosed 
herewith.  .  .  . 
I  have,  etc.,  GEO.  H.  MOSES. 

[Enclosure  —  Translation] 

The  Minister  for  Foreign  Affairs  to  Minister  Moses. 

THE  FOREIGN  OFFICE, 
Athens,  September  28,  1909. 

Mr.  Minister:  Taking  note  of  the  steps  which  you  have  taken 
with  me  toward  the  suppression  of  the  abuse  of  the  American 
flag  by  its  display  over  the  saloons  and  wineshops  at  the  Piraeus, 
I  hasten  to  bring  to  your  knowledge  that  the  director  of  police 
of  the  neighboring  city  has  received  orders  to  exercise  strict  watch 
and  prevent  the  abuse  in  question. 

K.  B.  MAVROMICHALIS. 

(Foreign  Relations  of  the  United  States,  1909,  pp.  337-38.) 


§  19.   RECOGNITION 

(a)  New  States 


THE  UNITED   STATES  AND   BUENOS  AYRES   (1818) 

ON  August  24,  1818,  Mr.  Adams,  Secretary  of  State,  wrote  to 
the  President:  "In  the  draft  of  a  letter  to  Mr.  Aguirre  ...  I 
have  stated  to  him  the  grounds  upon  which  the  Government  of 
the  United  States  have  been  deterred  from  an  acknowledgment 
of  that  of  Buenos  Ayres  as  including  the  dominion  of  the  whole 
viceroyalty  of  the  La  Plata.  The  result  of  the  late  campaign  in 
Venezuela,  by  comparing  the  royal  and  the  republican  bulletins, 
has  been  so  far  disadvantageous  to  the  latter  that  they  have  un- 
doubtedly failed  in  obtaining  possession  of  any  part  of  the  coast. 
They  have,  therefore,  at  least  one  more  campaign  to  contest,  to  go 
through,  for  which  they  will  need  several  months  of  preparation. 


THE  UNITED  STATES  AND  BUENOS  AYRES  165 

Bolivar  appears  to  have  resigned  the  chief  military  command  to 
Paez,  and  the  army  is  to  be  reorganized.  But  the  royalists  do  not 
appear  to  have  gained  any  ground,  and  are  evidently  too  much 
weakened  by  their  losses  to  act  upon  the  offensive.  In  this  state 
the  independence  of  Venezuela  can  scarcely  be  considered  hi  a 
condition  to  claim  the  recognition  of  neutral  powers.  But  there 
is  a  stage  hi  such  contests  when  the  parties  struggling  for  inde- 
pendence have,  as  I  conceive,  a  right  to  demand  its  acknowledg- 
ment by  neutral  parties,  and  when  the  acknowledgment  may  be 
granted  without  departure  from  the  obligations  of  neutrality.  It 
is  the  stage  when  independence  is  established  as  a  matter  of  fact 
so  as  to  leave  the  chances  of  the  opposite  party  to  recover  their 
dominion  utterly  desperate.  The  neutral  nation  must,  of  course, 
judge  for  itself  when  this  period  has  arrived;  and  as  the  belliger- 
ent nation  has  the  same  right  to  judge  for  itself,  it  is  very  likely 
to  judge  differently  from  the  neutral  and  to  make  it  a  cause  or 
pretext  for  war,  as  Great  Britain  did  expressly  against  France  in 
our  Revolution,  and  substantially  against  Holland.  If  war  thus 
results  in  point  of  fact  from  the  measure  of  recognizing  a  con- 
tested independence,  the  moral  right  or  wrong  of  the  war  depends 
upon  the  justice  and  sincerity  and  prudence  with  which  the  recog- 
nizing nation  took  the  step.  I  am  satisfied  that  the  cause  of  the 
South  Americans,  so  far  as  it  consists  in  the  assertion  of  independ- 
ence against  Spain,  is  just.  But  the  justice  of  a  cause,  however 
it  may  enlist  individual  feelings  in  its  favor,  is  not  sufficient  to 
justify  third  parties  in  siding  with  it.  The  fact  and  the  right  com- 
bined can  alone  authorize  a  neutral  to  acknowledge  a  new  and 
disputed  sovereignty.  The  neutral  may,  indeed,  infer  the  right 
from  the  fact,  but  not  the  fact  from  the  right.  If  Buenos  Ayres 
confined  its  demand  of  recognition  to  the  provinces  of  which  it  is 
in  actual  possession,  and  if  it  would  assert  its  entire  independence 
by  agreeing  to  place  the  United  States  upon  the  footing  of  the  most 
favored  nation,  ...  I  should  think  the  time  now  arrived  when 
its  government  might  be  recognized  without  a  breach  of  neu- 
trality." 

(Moore:  Digest  of  International  Law,  vol.  I,  pp.  78-79.) 


166  RECOGNITION 

(6)  New  Governments 


THE  FRENCH  REPUBLIC   (1848) 

FEBRUARY  24,  1848,  Mr.  Rush,  United  States  Minister  at  Paris, 
wrote  that  the  attempt  of  the  government  to  enforce  with  troops 
an  interdict  forbidding  a  "reform  banquet,"  which  was  to  have 
been  held  by  the  opposition  members  of  the  Chamber  of  Deputies 
and  others,  had  produced  a  state  of  things  "little  short  of  revolu- 
tionary." Even  as  he  wrote  cavalry  were  hastily  passing  through 
the  streets  within  his  hearing,  and  rumors  were  flying  that  the 
King  had  abdicated  and  that  the  Count  of  Paris  was  proclaimed. 
Scarcely  had  he  folded  his  dispatch,  when  the  revolution  was  ac- 
complished and  the  monarchy  overthrown.  The  King  abdicated 
and  fled  with  the  royal  family,  and  all  attempts  to  establish  a 
regency,  with  the  Count  of  Paris  as  successor  to  the  throne,  failed. 
A  provisional  government  was  immediately  formed.  It  was  pro- 
claimed on  the  morning  of  Friday,  the  25th,  the  proclamation 
declaring  that  the  Provisional  Government  desired  a  republic, 
subject  to  the  ratification  of  the  French  people.  On  Saturday,  the 
26th,  Mr.  Rush  received  an  intimation  that  his  "personal  presence 
at  the  Hotel  de  Ville,  to  cheer  and  felicitate  the  Provisional  Govern- 
ment, would  be  acceptable."  Before  the  day  was  out  he  imparted 
his  determination  to  take  the  step.  Monday,  the  28th,  was  ap- 
pointed for  it,  and  on  that  day  he  repaired  to  the  Hotel  de  Ville, 
accompanied  by  his  secretary  of  legation,  and  delivered  to  the 
President  and  other  members  of  the  Provisional  Government  there 
assembled  an  address  of  congratulation.  On  the  same  day  he 
acknowledged  a  note  written  by  M.  Lamartine,  as  Minister  of 
Foreign  Affairs  of  "the  Provisional  Government  of  the  French 
Republic,"  and  stated  that,  pending  the  receipt  of  instructions, 
he  would  be  ready  to  transact  with  him  whatever  business  might 
appertain  to  the  United  States  or  to  its  citizens  in  France. 

Mr.  Buchanan,  in  transmitting  to  Mr.  Rush  a  letter  of  credence 
to  the  French  Republic,  said: 

"It  was  right  and  proper  that  the  envoy  extraordinary  and 
minister  plenipotentiary  from  the  United  States  should  be  the 


THE  FRENCH  REPUBLIC  167 

first  to  recognize,  so  far  as  his  powers  extended,  the  Provisional 
Government  of  the  French  Republic.  Indeed,  had  the  representa- 
tive of  any  other  nation  preceded  you  in  this  good  work,  it  would 
have  been  regretted  by  the  President.  ...  In  its  intercourse 
with  foreign  nations  the  Government  of  the  United  States  has, 
from  its  origin,  always  recognized  de  facto  governments.  We 
recognize  the  right  of  all  nations  to  create  and  re-form  their 
political  institutions  according  to  their  own  will  and  pleasure. 
We  do  not  go  behind  the  existing  government  to  involve  our- 
selves in  the  question  of  legitimacy.  It  is  sufficient  for  us  to  know 
that  a  government  exists  capable  of  maintaining  itself;  and  then 
its  recognition  on  our  part  inevitably  follows.  This  principle  of 
action,  resulting  from  our  sacred  regard  for  the  independence  of 
nations,  has  occasioned  some  strange  anomalies  in  our  history. 
The  Pope,  the  Emperor  of  Russia,  and  President  Jackson  were 
the  only  authorities  on  earth  which  ever  recognized  Dom  Miguel 
as  King  of  Portugal. 

"Whilst  this  is  our  settled  policy,  it  does  not  follow  that  we 
can  ever  be  indifferent  spectators  to  the  progress  of  liberty  through- 
out the  world,  and  especially  in  France.  We  can  never  forget  the 
obligations  which  we  owe  to  that  generous  nation  for  their  aid 
at  the  darkest  period  of  our  Revolutionary  War  in  achieving  our 
own  independence.  ...  It  was,  therefore,  with  one  universal  burst 
of  enthusiasm  that  the  American  people  hailed  the  late  glorious 
revolution  in  France  in  favor  of  liberty  and  republican  govern- 
ment. In  this  feeling  the  President  strongly  sympathizes.  Warm 
aspirations  for  the  success  of  the  new  Republic  are  breathed  from 
every  heart." 

President  Polk,  in  a  special  message  to  Congress,  spoke  in 
similar  terms,  saying  that  Mr.  Rush,  called  upon  to  act  in  a  sudden 
emergency,  which  could  not  have  been  anticipated  by  his  in- 
structions, "judged  rightly  of  the  feelings  and  sentiments  of  his 
government  and  of  his  countrymen,  when,  in  advance  of  the 
diplomatic  representatives  of  other  countries,  he  was  the  first  to 
recognize,  so  far  as  it  was  in  his  power,  the  free  government  estab- 
lished by  the  French  people. 

"The  policy  of  the  United  States  has  ever  been  that  of  non- 
intervention in  the  domestic  affairs  of  other  countries,  leaving 


168  STATE  SUCCESSION 

to  each  to  establish  the  form  of  government  of  its  own  choice. 
While  this  wise  policy  will  be  maintained  toward  France,  now 
suddenly  transformed  from  a  monarchy  into  a  republic,  all  our 
sympathies  are  naturally  enlisted  on  the  side  of  a  great  people, 
who  imitating  our  example,  have  resolved  to  be  free." 

Congress,  by  a  joint  resolution,  tendered  its  congratulations, 
in  the  name  of  the  American  people,  "to  the  people  of  France, 
upon  the  success  of  then-  recent  efforts  to  consolidate  the  principles 
of  liberty  in  a  republican  form  of  government,"  and  requested  the 
President  to  transmit  the  resolution  to  the  American  Minister  at 
Paris,  with  instructions  to  present  it  to  the  French  Government. 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  I, 
pp.  123-25.) 

§  20.   STATE  SUCCESSION 
(a)  Things  and  obligations 


THE  SAPPHIRE 

The  Supreme  Court  of  the  United  States,  1871 

THIS  was  an  appeal  from  the  Circuit  Court  of  the  United  States 
for  the  District  of  California. 

The  case  was  one  of  collision  between  the  American  ship 
Sapphire  and  the  French  transport  Euryale,  which  took  place  in  the 
harbor  of  San  Francisco  on  the  morning  of  December  22,  1867,  by 
which  the  Euryale  was  considerably  damaged.  A  libel  was  filed 
in  the  District  Court  two  days  afterwards,  in  the  name  of  the  Em- 
peror Napoleon  III,  then  Emperor  of  the  French,  as  owner  of  the 
Euryale,  against  the  Sapphire.  The  claimants  filed  an  answer,  al- 
leging among  other  things  that  the  damage  was  occasioned  by  the 
fault  of  the  Euryale.  Depositions  were  taken,  and  the  court 
decreed  in  favor  of  the  libelant  and  awarded  him  $15,000,  the 
total  amount  claimed.  The  claimants  appealed  to  the  Circuit 
Court,  which  affirmed  the  decree.  They  then,  in  July,  1869,  ap- 
pealed to  this  court.  In  the  summer  of  1870  Napoleon  III  was 
deposed.  The  case  came  on  to  be  argued  here  February  16,  1871. 
Three  questions  were  raised: 


THE  SAPPHIRE  169 

1.  The  right  of  the  Emperor  of  France  to  have  brought  suit  in 
our  courts. 

2.  Whether,  if  rightly  brought,  the  suit  had  not  become  abated 
by  the  deposition  of  the  Emperor  Napoleon  III. 

3.  The  question  of  merits;  one  of  fact,  and  depending  upon  evi- 
dence stated  toward  the  conclusion  of  the  opinion,  where  the 
point  is  considered.  .  .  . 

Mr.  Justice  Bradley  delivered  the  opinion  of  the  court: 
"The  first  question  raised  is  as  to  the  right  of  the  French  Em- 
peror to  sue  in  our  courts.  On  this  point  not  the  slightest  difficulty 
exists.  A  foreign  sovereign,  as  well  as  any  other  foreign  person, 
who  has  a  demand  of  a  civil  nature  against  any  person  here,  may 
prosecute  it  in  our  courts.  To  deny  him  this  privilege  would  mani- 
fest a  want  of  comity  and  friendly  feeling.  Such  a  suit  was  sus- 
tained in  behalf  of  the  King  of  Spain  in  the  Third  Circuit  by 
Justice  Washington  and  Judge  Peters  in  1810.  The  Constitution 
expressly  extends  the  judicial  power  to  controversies  between  a 
state,  or  citizens  thereof,  and  foreign  states,  citizens,  or  subjects, 
without  reference  to  the  subject-matter  of  the  controversy.  Our 
own  government  has  largely  availed  itself  of  the  like  privilege  to 
bring  suits  in  the  English  courts  in  cases  growing  out  of  our  late 
Civil  War.  Twelve  or  more  of  such  suits  are  enumerated  in  the 
brief  of  the  appellees,  brought  within  the  last  five  years  in  the 
English  law,  chancery,  and  admiralty  courts.  There  are  numer- 
ous cases  in  the  English  reports  in  which  suits  of  foreign  sovereigns 
have  been  sustained,  though  it  is  held  that  a  sovereign  cannot  be 
forced  into  court  by  suit. 

"The  next  question  is,  whether  the  suit  has  become  abated  by 
the  recent  deposition  of  the  Emperor  Napoleon.  We  think  it  has 
not.  The  reigning  sovereign  represents  the  national  sovereignty, 
and  that  sovereignty  is  continuous  and  perpetual,  residing  in  the 
proper  successors  of  the  sovereign  for  the  time  being.  Napoleon 
was  the  owner  of  the  Euryale,  not  as  an  individual,  but  as  sov- 
ereign of  France.  This  is  substantially  averred  in  the  libel.  On 
his  deposition  the  sovereignty  does  not  change,  but  merely  the 
person  or  persons  in  whom  it  resides.  The  foreign  state  is  the  true 
and  real  owner  of  its  public  vessels  of  war.  The  reigning  Emperor, 


170  STATE  SUCCESSION 

or  National  Assembly,  or  other  actual  person  or  party  in  power, 
is  but  the  agent  and  representative  of  the  national  sovereignty. 
A  change  in  such  representative  works  no  change  in  the  national 
sovereignty  or  its  rights.  The  next  successor  recognized  by  our 
government  is  competent  to  carry  on  a  suit  already  commenced 
and  receive  the  fruits  of  it.  A  deed  to  or  treaty  with  a  sovereign 
as  such  inures  to  his  successors  in  the  government  of  the  country. 
If  a  substitution  of  names  is  necessary  or  proper  it  is  a  formal 
matter,  and  can  be  made  by  the  court  under  its  general  power  to 
preserve  due  symmetry  in  its  forms  of  proceeding.  No  allegation 
has  been  made  that  any  change  in  the  real  and  substantial  owner- 
ship of  the  Euryale  has  occurred  by  the  recent  devolution  of  the 
sovereign  power.  The  vessel  has  always  belonged  and  still  be- 
longs to  the  French  nation. 

"If  a  special  case  should  arise  in  which  it  could  be  shown  that 
injustice  to  the  other  party  would  ensue  from  a  continuance  of  the 
proceedings  after  the  death  or  deposition  of  a  sovereign,  the  court, 
in  the  exercise  of  its  discretionary  power,  would  take  such  order 
as  the  exigency  might  require  to  prevent  such  a  result. 

"The  remaining  question  relates  to  the  merits  of  the  case.  .  .  . 

"Decree  of  the  Circuit  Court  reversed,  and  the  cause  remitted 
to  that  court  with  directions  to  enter  a  decree  in  conformity  with 
this  opinion." 

(Wallace:  Cases  argued  and  adjudged  in  the  Supreme  Court  of 
the  United  States,  vol.  xi,  pp.  164-71.) 


THE  CUBAN  DEBT  (1898) 

BY  the  protocol  of  armistice  between  the  United  States  and 
Spain,  signed  at  Washington  August  12,  1898,  it  was  provided: 

"Article  i.  Spain  will  relinquish  all  claim  of  sovereignty  over 
and  title  to  Cuba. 

"Article  2.  Spain  will  cede  to  the  United  States  the  Island  of 
Porto  Rico  and  other  islands  now  under  Spanish  sovereignty  in 
the  West  Indies,  and  also  an  island  in  the  Ladrones  to  be  selected 
by  the  United  States." 

In  the  peace  negotiations  at  Paris,  the  American  Commission- 


THE  CUBAN  DEBT  171 

ers,  October  3, 1898,  proposed  the  insertion  in  the  definitive  treaty 
of  the  following  clauses: 

"The  Government  of  Spain  hereby  relinquishes  all  claim  of 
sovereignty  over  and  title  to  Cuba." 

"The  Government  of  Spam  hereby  cedes  to  the  United  States 
the  Island  of  Porto  Rico  and  other  islands  now  under  Spanish 
sovereignty  in  the  West  Indies,  and  also  the  Island  of  Guam,  in 
the  Ladrones." 

The  Spanish  Commissioners  submitted,  October  7,  1898,  a 
counter-proposal,  by  which  Spain  was  to  relinquish  her  sovereignty 
over  Cuba  and  transfer  it  to  the  United  States,  and  by  which  the 
"relinquishment  and  transfer"  were  declared  to  embrace  "all 
the  prerogatives,  powers,  and  rights"  of  Spam  over  the  island  and 
its  inhabitants,  and  "all  charges  and  obligations  of  every  kind  in 
existence  at  the  time  of  the  ratification  of  this  treaty  of  peace, 
which  the  Crown  of  Spain  and  her  authorities  in  the  Island  of 
Cuba  may  have  contracted  lawfully  in  the  exercise  of  the  sover- 
eignty hereby  relinquished  and  transferred,  and  which  as  such 
constitute  an  integral  part  thereof."  For  the  purpose  of  ascer- 
taining what  were  such  "charges  and  obligations,"  it  was  pro- 
posed to  be  laid  down  that  they  "must  have  been  levied  and  im- 
posed in  constitutional  form  and  in  the  exercise  of  its  legitimate 
powers  by  the  Crown  of  Spain,  as  the  sovereign  of  the  Island  of 
Cuba,  or  by  its  lawful  authorities  in  the  exercise  of  their  respective 
powers  prior  to  the  ratification  of  this  treaty,"  and  that  they  must 
have  been  created  "for  the  service  of  the  Island  of  Cuba,  or  charge- 
able to  its  own  individual  treasury."  It  was,  however,  to  be  ex- 
pressly declared  that  they  should,  within  these  limitations,  in- 
clude "all  debts,  of  whatsoever  kind,  lawful  charges,  the  salaries 
or  allowances  of  all  employees,  civil  and  ecclesiastical,  who  shall 
continue  to  render  services  in  the  Island  of  Cuba,  and  all  pensions 
in  the  civil  and  military  services,  and  of  widows  and  orphans." 

And  it  was  proposed  that  similar  stipulations  should  be  inserted 
with  regard  to  Porto  Rico. 

The  American  Commissioners,  October  u,  1898,  rejected  these 
proposals,  on  the  ground  that  they  appeared  to  convey  not  a  prop- 
osition to  "relinquish  all  claim  of  sovereignty  over  and  title  to 
Cuba,"  but  in  substance  a  proposition  to  "transfer"  to  the  United 


172  STATE  SUCCESSION 

States  and  in  turn  to  Cuba  "a  mass  of  Spanish  obligations  and 
charges."  "It  is  difficult,"  added  the  American  Commissioners, 
"to  perceive  by  what  logic  an  indebtedness  contracted  for  any 
purpose  can  be  deemed  part  of  the  sovereignty  of  Spain  over  the 
Island  of  Cuba.  In  the  article  proposed  it  is  attempted  to  yoke 
with  the  transfer  of  sovereignty  an  obligation  to  assume  an  in- 
debtedness arising  out  of  the  relations  of  Spain  to  Cuba.  The 
unconditional  relinquishment  of  sovereignty  by  Spain  stipulated 
for  in  the  protocol  is  to  be  changed  into  an  engagement  by  the 
United  States  to  accept  the  sovereignty  burdened  with  a  large 
mass  of  outstanding  indebtedness.  It  is  proper  to  say  that  if  dur- 
ing the  negotiations  resulting  in  the  conclusion  of  the  protocol 
Spain  had  proposed  to  add  to  it  stipulations  in  regard  to  Cuba  such 
as  those  now  put  forward,  the  proposal,  unless  abandoned,  would 
have  terminated  the  negotiations.  The  American  Commission- 
ers, therefore,  speaking  for  their  government,  must  decline  to 
accept  the  burden  which  it  is  now  proposed  shall  be  gratuitously 
assumed."  l 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  I,  pp. 
351-52.    Professor  Moore  was  a  member  of  the  commission.) 


(b)  Allegiance 

THE  NATIONALITY  OF  THE  FRENCH  RESIDENTS   OF 
ALSACE-LORRAINE   (1871) 

As  Thiers  declared  in  the  National  Assembly,  December  20, 
1871,  the  French  plenipotentiaries  at  Frankfort  contended  that 
only  those  who  were  domiciled  in  Alsace-Lorraine  at  the  date  of 
the  signature  of  the  preliminaries  [of  peace]  should  be  considered 
as  becoming  German  subjects  as  a  result  of  the  conquest.  The 
adoption  of  this  criterion  would  prevent  many  difficulties,  since  it 
would  be  easier  to  bring  the  terms  of  the  treaty  to  the  attention 

1  In  the  fuller  development  of  these  arguments,  which  will  be  found  in  Moore 
(Digest  of  International  Law,  vol.  i,  p.  351  jf.),  the  United  States  successfully  main- 
tained this  attitude,  which  was  eventually  accepted  by  Spain.  For  reference  to  the 
authorities  discussing  this  question,  see  Hershey :  Essentials  of  International  Public 
Law,  p.  135. 


FRENCH  RESIDENTS  OF  ALSACE-LORRAINE  173 

of  all  those  domiciled  in  Alsace  than  it  would  be  to  reach  those 
who  had  been  born  there.  But  the  Germans,  influenced  prob- 
ably by  the  idea  that  Alsace  had  been  formerly  a  part  of  the 
Holy  Roman  Empire  and  that  the  Alsatians  and  Lorrainers 
were  of  German  blood,  looked  at  the  question  from  an  ethnical 
point  of  view  and  claimed  as  German  subjects  all  those  born  on 
the  ceded  territory. 

The  Treaty  of  Frankfort  of  May  10,  1871,  has  the  following 
stipulation  regarding  this  matter  (article  2) : 

"French  subjects,  natives  of  the  ceded  territories,  actually 
domiciled  in  that  territory,  who  wish  to  retain  their  nationality, 
shall  have  until  the  ist  of  October,  1872,  to  change  their  domicile 
to  France  and  to  establish  themselves  there,  upon  condition  of 
their  making  a  previous  declaration  to  that  effect  before  the 
competent  authorities.  This  right  may  not  be  affected  by  laws 
in  regard  to  military  service.  Those  who  remove  to  France, 
in  accordance  with  this  provision,  shall  retain  their  French 
citizenship." 

The  French  Government  tried  to  secure  as  restricted  an  appli- 
cation as  possible  for  the  word  native  (originaire),  but  were  fain 
to  agree  by  article  i  of  the  additional  convention  to  the  Treaty  of 
Frankfort  that  the  natives  even  though  not  domiciled  (in  the  ceded 
territory)  could  not  retain  their  French  nationality  without  dec- 
laration; so  that  every  native  of  Alsace-Lorraine,  in  whatever 
part  of  the  world  he  might  be,  could  only  avoid  becoming  a  Ger- 
man subject  by  making  the  prescribed  declaration. 

Another  and  more  serious  difference  of  opinion  arose  in  regard 
to  the  inhabitants  of  the  ceded  provinces  who  were  natives  of 
other  French  departments.  The  German  Government  did  not 
exact  a  declaration  from  individuals  in  this  category  in  order  to 
preserve  their  nationality,  —  that  would  have  been  manifestly 
contrary  to  the  terms  of  the  treaty,  —  but  announced  its  inten- 
tion of  requiring  them  to  transfer  their  domicile  to  France.  The 
French  Government  had  always  believed  the  cession  would  not 
affect  the  nationality  of  this  class. 

In  a  note  of  September  i,  1872,  to  the  French  Minister  for 
Foreign  Affairs,  the  German  Ambassador  set  forth  the  views  of 
his  government: 


174  STATE  SUCCESSION 

"The  German  Government  has  from  the  first  considered  that, 
by  the  mere  fact  of  the  cession  of  Alsace  and  Lorraine  to  Germany, 
the  inhabitants  of  French  nationality  became  German,  without 
there  being  any  need  that  this  should  be  expressly  stipulated  hi 
the  treaty  of  peace;  and  article  2,  as  Germany  looked  at  it,  had 
no  other  meaning  or  aim  than  to  fix  the  conditions  by  the  observ- 
ance of  which  a  certain  category  of  inhabitants]  might  escape 
from  this  natural  consequence  of  the  cession.  In  requiring  these 
latter  to  make  a  formal  declaration  in  favor  of  France  and  to 
transfer  their  actual  residence  [domicile  effectif],  the  German  Gov- 
ernment did  not,  however,  intend  to  dispense  with  the  requirement 
of  any  formality  from  another  category  of  individuals  who  also 
became  German  in  consequence  of  the  cession,  in  case  they  desire 
to  recover  their  former  nationality." 

A  note  was  inserted  in  the  Official  Journal  of  September  14, 
1872,  to  bring  to  the  attention  of  those  concerned  this  difference 
of  interpretation  that  they  might  have  time  to  act  upon  it  before 
the  expiration  of  the  delay. 

(Condensed  and  translated  from  G.  Cogordan:  La  Nationality 
[2d  ed.,  Paris,  1900],  pp.  359-64.) 


(c)  Property  rights  of  individuals 


THE  CANAL  ZONE  SQUATTERS   (1913) 

IN  accordance  with  the  terms  of  article  15  of  the  treaty  between 
the  United  States  and  Panama  signed  November  18,  1903,  and 
ratified  February  26,  1904,  the  President  of  Panama  in  January, 
1913,  appointed  the  Honorable  Federico  Boyd,  a  former  President 
of  the  Republic,  and  the  Honorable  Samuel  Lewis,  a  former  Min- 
ister of  Foreign  Affairs,  to  represent  the  Republic  of  Panama  on 
the  joint  commission  under  the  treaty.  At  the  same  tune  Presi- 
dent Taft  appointed  Dr.  Roland  P.  Falkner,  of  Washington, 
D.C.,  and  Dr.  L.  S.  Rowe,  of  the  University  of  Pennsylvania,  to 
represent  the  United  States.  The  American  Commissioners  ar- 
rived on  the  Isthmus  in  February  and  on  the  ist  of  March  the 
first  formal  meeting  of  the  commission  was  held. 


THE  CANAL  ZONE  SQUATTERS  175 

The  competence  and  purpose  of  the  commission  were  denned 
by  article  6  of  the  treaty: 

"The  grants  herein  contained  shall  in  no  manner  invalidate 
the  titles  or  rights  of  private  landholders  or  owners  of  private 
property  in  the  said  zone  or  in  or  to  any  of  the  lands  or  waters 
granted  to  the  United  States  by  the  provisions  of  any  article  of 
this  treaty,  nor  shall  they  interfere  with  the  rights  of  way  over 
the  public  roads  passing  through  the  said  zone  or  over  any  of  the 
said  lands  or  waters  unless  said  rights  of  way  or  private  rights 
shall  conflict  with  rights  herein  granted  to  the  United  States,  in 
which  case  the  rights  of  the  United  States  shall  be  superior.  All 
damages  caused  to  the  owners  of  private  lands  or  private  property 
of  any  kind  by  reason  of  the  grants  contained  in  this  treaty  or  by 
reason  of  the  operations  of  the  United  States,  its  agents  or  em- 
ployees, or  by  reason  of  the  construction,  maintenance,  operation, 
sanitation,  and  protection  of  the  said  canal  or  of  the  works  of 
sanitation  and  protection  herein  provided  for,  shall  be  appraised 
and  settled  by  a  joint  commission  appointed  by  the  Governments 
of  the  United  States  and  the  Republic  of  Panama,  whose  decisions 
as  to  such  damages  shall  be  final,  and  whose  awards  as  to  such 
damages  shall  be  paid  solely  by  the  United  States.  No  part  of  the 
work  on  said  canal  or  the  Panama  Railroad  or  on  any  auxiliary 
works  relating  thereto  and  authorized  by  the  terms  of  this  treaty 
shall  be  prevented,  delayed  or  impeded  by  or  pending  such  pro- 
ceedings to  ascertain  such  damages.  The  appraisal  of  said  private 
lands  and  private  property  and  the  assessment  of  damages  to  them 
shall  be  based  upon  their  value  before  the  date  of  this  convention." 

The  most  important  question  confronting  the  commission  re- 
lated to  the  status  of  settlers  or  occupiers  of  public  lands  in  the 
Canal  Zone,  who  went  upon  such  lands  prior  to  the  conclusion  of 
the  Treaty  of  February  26, 1904.  Under  the  Colombian  law  which 
prevailed  in  the  Canal  Zone  prior  to  the  independence  of  the  Re- 
public of  Panama,  and  which  continued  in  force  while  the  Re- 
public of  Panama  exercised  jurisdiction  over  the  Canal  Zone, 
occupiers  of,  or  squatters  on,  public  lands,  were  entitled  to  com- 
pensation for  the  value  of  their  improvements  if  for  any  reason 
they  were  ousted  from  such  lands.  Counsel  for  the  United  States 
strenuously  contended  that  the  transfer  of  the  political  jurisdic- 


176  STATE  SUCCESSION 

tion  over  the  Canal  Zone  to  the  United  States  destroyed  any 
rights  that  might  have  been  acquired  by  settlers  or  occupiers 
under  the  Colombian  law.  It  was  argued  that  under  the  general 
principles  of  American  jurisprudence  unauthorized  occupiers  of 
public  lands  are  mere  trespassers,  and  that  a  trespass  cannot  be 
made  the  foundation  of  a  right.  Great  legal  acumen  was  dis- 
played by  counsel  both  for  the  United  States  and  the  parties  in 
interest,  and  after  an  exhaustive  argument  before  the  commission 
and  prolonged  deliberation  within  the  commission  the  conclusion 
was  finally  reached  by  unanimous  vote  that  settlers  or  occupiers 
of  public  lands  in  the  Canal  Zone,  who  went  upon  such  lands  prior 
to  the  conclusion  of  the  Treaty  of  February  26,  1904,  were  en- 
titled to  compensation  for  the  value  of  the  improvements  which 
they  had  made  on  such  lands.  The  opinion  establishing  this 
principle  reads  as  follows: 

"  With  reference  to  the  status  of  such  occupiers,  it  is  clear  that 
under  the  provisions  of  the  Laws  of  the  United  States  of  Colombia 
and  subsequently  of  the  Republic  of  Panama,  cultivators  on 
public  lands  acquire  a  right  to  compensation  for  improvements, 
which  rights  were  not  divested  by  anything  contained  in  the  Treaty 
of  November  18,  1903,  or  by  the  change  of  sovereignty  affected  by 
that  treaty. 

"The  rights  of  occupiers  on  public  lands  of  the  United  States  of 
Colombia  to  compensation  for  improvements  made  thereon,  are 
governed  by  law  No.  48  of  1882.  .  .  ." 

After  quoting  the  terms  of  the  law  and  referring  to  decisions 
of  the  courts  of  the  Canal  Zone,  the  commission  made  the  follow- 
ing rule  to  govern  the  award  of  damages  in  particular  instances: 
"In  all  those  cases  in  which  rights  accrued  prior  to  November  18, 
1903,  to  occupiers  or  settlers  on  public  lands,  such  rights  were  not 
divested  by  the  Treaty  of  November  18,  1903,  and  .  .  .  such 
settlers  or  occupiers  are  entitled  to  compensation  for  such  rights 
as  have  accrued." 

(Prepared  from  an  article  by  Dr.  Leo  S.  Rowe,  a  member  of 
the  commission,  in  The  American  Journal  of  International  Law 
[1914],  vol.  vm,  pp.  738-42.) 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          177 
§21.   SERVITUDES  AND  LEASES 


THE  NORTH  ATLANTIC  FISHERIES  ARBITRATION 

The  Permanent  Court  of  Arbitration  at  The  Hague, 


WHEN,  on  January  27,  1909,  Mr.  Root,  Secretary  of  State  of 
the  United  States,  and  Mr.  Bryce,  British  Ambassador  at  Wash- 
ington, signed  a  special  agreement  submitting  the  North  Atlantic 
Fisheries  dispute  to  arbitration  at  The  Hague,  the  final  step  was 
taken  toward  the  settlement  of  the  most  persistent  controversy 
in  the  history  of  American  diplomacy.  It  was  just  the  kind  of 
question  contemplated  in  the  General  Arbitration  Treaty  of 
April  4,  1908,  which  undertook  to  refer  to  arbitration  "differences 
which  may  arise  of  a  legal  nature  or  relating  to  the  interpretation 
of  treaties  existing  between  the  two  contracting  parties  and  which 
it  may  not  have  been  possible  to  settle  by  diplomacy;"  and  it 
was  in  conformity  with  this  treaty  that  the  agreement  was  made, 
inasmuch  as  the  issue  submitted  called  for  the  interpretation  of 
the  first  article  of  the  Convention  of  1818,  by  which  the  two 
parties  had  sought  to  define  the  rights  of  American  fishermen  in 
British  North  American  waters. 

In  1782-83,  when  Great  Britain  and  her  former  colonies  came 
together  in  negotiations  for  peace,  one  of  the  subjects  upon  which 
agreement  was  found  most  difficult  was  the  nature  The  Treaty  of 
and  the  extent  of  the  fishing  rights  hi  the  North  Peftce»  ^83 
Atlantic.  Previous  to  the  Revolution,  the  colonists  had  resorted 
to  the  fishing  grounds  on  equal  terms  with  their  fellow-subjects 
in  the  mother  country.  They  had  assisted  in  acquiring  them 
during  the  colonial  wars  and  had  found  in  them  one  of  their  chief 
sources  of  wealth,  relatively  much  more  important  at  that  time 
than  to-day.  But  these  national  and  economic  interests  of  the 
United  States  collided  with  the  British  claim  to  sovereign  control, 
and  hence,  when  the  negotiators  addressed  themselves  to  the 
disposal  of  the  fisheries,  two  opposite  theories  were  advanced. 
The  Americans,  especially  John  Adams,  maintained  that  what 
was  taking  place  was  a  "division  of  empire"  and  that  the  colonies, 


1 78  SERVITUDES  AND  LEASES 

on  withdrawal,  still  retained  all  their  former  rights,  among  them 
the  free  use  and  enjoyment  of  the  fisheries.  "The  treaty  was 
nothing  more  than  mutual  acknowledgment  of  antecedent  right." 
The  British,  on  the  other  hand,  considered  the  fisheries  an  acqui- 
sition by  the  British  Crown  for  the  use  of  British  subjects  and 
always  at  the  disposal  of  Great  Britain,  and  maintained  that  the 
Americans,  having  lost  the  rights  as  well  as  the  status  of  British 
subjects,  could  get  back  former  fishing  privileges  only  by  way  of 
grant  from  Great  Britain.  After  several  proposals  on  each  side, 
agreement  was  reached  in  article  3  of  the  treaty  of  peace,  as 
follows: 

"It  is  agreed  that  the  people  of  the  United  States  shall  con- 
tinue to  enjoy  unmolested  the  right  to  take  fish  of  every  kind  on 
the  Grand  Bank,  and  on  all  the  other  banks  of  Newfoundland; 
also  in  the  Gulf  of  St.  Lawrence,  and  at  all  other  places  in  the  sea, 
where  the  inhabitants  of  both  countries  used  at  any  time  hereto- 
fore to  fish;  and  also  that  the  inhabitants  of  the  United  States 
shall  have  liberty  to  take  fish  of  every  kind  on  such  part  of  the 
coast  of  Newfoundland  as  British  fishermen  shall  use  (but  not  to 
dry  or  cure  the  same  on  that  island) ;  and  also  on  the  coasts,  bays 
and  creeks  of  all  other  of  His  Britannic  Majesty's  dominions  in 
America;  and  that  the  American  fishermen  shall  have  liberty  to 
dry  and  cure  fish  in  any  of  the  unsettled  bays,  harbors,  and  creeks 
of  Nova  Scotia,  Magdalen  Islands,  and  Labrador,  so  long  as  the 
same  shall  remain  unsettled;  but  so  soon  as  the  same  or  either  of 
them  shall  be  settled,  it  shall  not  be  lawful  for  the  said  fishermen 
to  dry  or  cure  fish  at  such  settlement,  without  a  previous  agree- 
ment for  that  purpose  with  the  inhabitants,  proprietors,  or  pos- 
sessors of  the  ground." 

Two  kinds  of  fishery  were  the  subject  of  this  article  —  the 
offshore  and  deep-sea  fishery,  which  is  designated  as  a  right  to  be 
continued  in  enjoyment,  and  the  inshore  fishery,  participation  in 
which  was  said  to  be  a  liberty.  The  reservation,  "such  part  of  the 
coast  of  Newfoundland  as  British  fishermen  shall  use,"  had  in 
mind  the  restriction  already  placed  on  the  western  and  northern 
coasts  of  that  island  by  the  fishing  rights  possessed  by  the  French 
under  the  Treaties  of  Utrecht  and  Paris.  The  other  liberty  ob- 
tained —  that  of  drying  and  curing  fish  —  was  limited  in  scope 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          179 

and  of  uncertain  tenure,   because  conditional  upon  the  non- 
settlement  of  the  coast. 

The  fishery  agreement  of  1783  proved  satisfactory  and  re- 
mained unchallenged,  until  the  War  of  1812  disclosed  a  funda- 
mental difference  of  view  as  to  the  effect  of  the  war  The  Controver- 
upon  the  Treaty  of  1783,  especially  upon  its  third  8y~~ I8l2~l8 
article.  Great  Britain  contended  that  the  "liberties"  obtained 
under  that  treaty,  being  in  the  nature  of  commercial  concessions, 
had  been  abrogated  by  the  event  of  "war  and  could  be  recovered 
only  for  a  consideration.  The  United  States  contended  that  the 
treaty  of  peace  had  been,  from  its  nature,  a  permanent  settlement, 
not  to  be  affected  by  future  wars,  and  that  any  fishing  privileges 
specified  were  preexisting  rights  automatically  remaining  with 
the  Americans  on  the  "division  of  empire,"  the  permanency  of 
which  rights  was  no  more  open  to  challenge  than  the  recognition 
of  independence  or  the  establishment  of  the  boundaries.  No 
agreement,  however,  could  be  reached  by  the  negotiators  of  the 
Treaty  of  Ghent,  and  the  subject  of  the  fisheries  was  left  in 
abeyance.  Thus,  for  a  time,  the  status  of  American  fishermen  in 
British  colonial  waters  remained  undefined. 

Such  a  condition,  however,  produced  friction,  and  seizures  of 
American  fishing  vessels  began  to  be  made  within  British  waters, 
though  no  claim  was  made  by  Great  Britain  to  exercise  jurisdic- 
tion over  fishing  on  the  high  seas.  A  warning  given  to  an  American 
vessel  by  a  British  warship  to  desist  from  fishing  within  sixty 
miles  of  the  coast  of  Nova  Scotia,  when  made  the  subject  of 
protest  by  the  United  States,  brought  forth  the  declaration  from 
the  British  Government  that  "as,  on  the  one  hand,  Great  Britain 
could  not  permit  the  vessels  of  the  United  States  to  fish  within 
the  creeks  and  close  upon  the  shores  of  the  British  territories,  so, 
on  the  other  hand,  it  was  by  no  means  her  intention  to  interrupt 
them  in  fishing  anywhere  in  the  open  sea,  or  without  the  territorial 
jurisdiction,  a  marine  league  from  the  shore;  and,  therefore,  that 
the  warning  given  at  the  place  stated,  in  the  case  referred  to,  was 
altogether  unauthorized." 

This  intention  of  Great  Britain  to  exclude  American  fishing 
vessels  from  the  territorial  waters  met  with  continuous  protest 
from  the  United  States  and  a  considerable  correspondence  passed 


l8o  SERVITUDES  AND  LEASES 

in  1815-16  between  John  Quincy  Adams,  then  Minister  of  the 
United  States  at  London,  and  Lord  Bathurst,  on  the  part  of  the 
British  Government.  The  positions  taken  in  the  negotiations  at 
Ghent  were  maintained.  Lord  Bathurst  argued  that,  while  some 
of  the  provisions  of  the  Treaty  of  1783  might,  from  their  nature, 
be  irrevocable,  the  language  of  the  article  dealing  with  the  fish- 
eries showed  that  it  was  not  intended  to  survive  a  war  between  the 
parties.  The  words  "right"  and  "liberty"  were  contrasted,  the 
former,  throughout  the  treaty,  being  used  "as  applicable  to  what 
the  United  States  were  to  enjoy  in  virtue  of  a  recognized  inde- 
pendence," the  latter,  "to  what  they  were  to  enjoy  as  concessions 
strictly  dependent  on  the  treaty  itself."  "The  grant  of  this 
liberty,"  wrote  Lord  Bathurst,  "has  all  the  aspect  of  a  policy 
temporary  and  experimental,  depending  on  the  use  that  might  be 
made  of  it."  Mr.  Adams,  on  the  other  hand,  stoutly  reiterated 
his  former  argument  that  the  treaty  had  survived  the  war  and 
with  it  the  fishing  liberties.  He  understood  the  term  "liberty" 
to  be  "essentially  as  permanent  as  that  of  'right'  .  .  .  and  a 
modification  of  the  same  thing."  The  liberties  had  never  been 
renounced  by  the  United  States  and  hence  were  as  much  in  its 
possession  as  ever.  In  Mr.  Adams's  opinion,  "the  participation 
in  the  liberties  of  which  their  right  is  now  maintained  is  far  more 
important  to  the  interests  of  the  people  of  the  United  States  than 
the  exclusive  enjoyment  of  them  can  be  to  the  interests  of  Great 
Britain,"  and  he  expressed  the  belief  that  the  smuggling  on  the 
part  of  American  fishing  vessels  and  their  obstruction  of  British 
fishermen,  both  objects  of  complaint  by  Great  Britain,  could  be 
"obviated  by  arrangements  duly  concerted  between  the  two 
governments." 

After  two  or  three  years  of  unsuccessful  negotiations,  commis- 
sioners from  both  sides  at  last  met  in  London  in  1818  to  draw  up 
TheConven-   a  new  commercial  convention  in  place  of  the  one 
tion  of  1818     which  was  to  expire  in  1819.    At  the  same  time  they 
were  empowered  to  make  a  settlement  of  the  fishery  dispute 
and  other  questions  arising  out  of  the  late  war.     The  result  was 
the  convention,  signed  October  20,    1818,  respecting  fisheries, 
boundaries,  and  the  restoration  of  slaves,  the  first  article  of  which 
is  as  follows: 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          181 

"Whereas  differences  have  arisen  respecting  the  liberty  claimed 
by  the  United  States  for  the  inhabitants  thereof,  to  take,  dry, 
and  cure  fish  on  certain  coasts,  bays,  harbors,  and  creeks  of  His 
Britannic  Majesty's  dominions  in  America,  it  is  agreed  between 
the  high  contracting  parties,  that  the  inhabitants  of  the  said 
United  States  shall  have  forever,  in  common  with  the  subjects  of 
His  Britannic  Majesty,  the  liberty  to  take  fish  of  every  kind  on 
that  part  of  the  southern  coast  of  Newfoundland  which  extends 
from  Cape  Ray  to  the  Rameau  Islands,  on  the  western  and  north- 
ern coast  of  Newfoundland,  from  the  said  Cape  Ray  to  the  Quirpon 
Islands  on  the  shores  of  the  Magdalen  Islands,  and  also  on  the 
coasts,  bays,  harbors,  and  creeks  from  Mount  Joly  on  the  south- 
ern coast  of  Labrador,  to  and  through  the  Straits  of  Belleisle  and 
thence  northwardly  indefinitely  along  the  coast,  without  preju- 
dice however,  to  any  of  the  exclusive  rights  of  the  Hudson  Bay 
Company:  and  that  the  American  fishermen  shall  also  have 
liberty  forever,  to  dry  and  cure  fish  in  any  of  the  unsettled  bays, 
harbors,  and  creeks  of  the  southern  part  of  the  coast  of  New- 
foundland hereabove  described,  and  of  the  coast  of  Labrador; 
but  so  soon  as  the  same,  or  any  portion  thereof,  shall  be  settled,  it 
shall  not  be  lawful  for  the  said  fishermen  to  dry  or  cure  fish  at 
such  portion  so  settled,  without  previous  agreement  for  such  pur- 
pose with  the  inhabitants,  proprietors,  or  possessors  of  the  ground. 
And  the  United  States  hereby  renounce  forever  any  liberty  here- 
tofore enjoyed  or  claimed  by  the  inhabitants  thereof,  to  take, 
dry,  or  cure  fish  on,  or  within  three  marine  miles  of  any  of 
the  coasts,  bays,  creeks,  or  harbors  of  His  Britannic  Majesty's 
dominions  in  America  not  included  within  the  above-mentioned 
limits;  provided,  however,  that  the  American  fishermen  shall 
be  admitted  to  enter  such  bays  or  harbors  for  the  purpose 
of  shelter  and  of  repairing  damages  therein,  or  purchasing  wood, 
and  of  obtaining  water,  and  for  no  other  purpose  whatever.  But 
they  shall  be  under  such  restrictions  as  may  be  necessary  to 
prevent  their  taking,  drying,  or  curing  fish  therein,  or  in  any 
other  manner  whatever  abusing  the  privileges  hereby  reserved 
to  them." 

An  analysis  of  the  terms  of  this  article  and  a  comparison  with 
the  corresponding  article  in  1783  show  that  — 


1 82  SERVITUDES  AND  LEASES 

1.  Nothing  was  said  in  1818  of  the  "right"  to  the  deep-sea 
fishery,  admitted  in  1783.     As  no  controversy  had  arisen 
over  its  permanence,  it  remained  with  the  United  States. 

2.  In  1783,  the  "liberty"  to  take  fish,  granted  to  the  inhabitants 
of  the  United  States,  was  to  be  exercised  in  all  British  terri- 
torial waters  except  those  of  Newfoundland,  where  it  was 
restricted  to  "such  part  of  the  coast  as  British  fishermen 
shall  use;"  in  1818,  this  liberty  was  .limited  to  four  specified 
coasts,  one  of  them  the  "French  shore,"  so  called. 

3.  The  liberty  of  1818  was  to  be  enjoyed  "forever,"  which 
word  was  insisted  upon  by  the  American  Commissioners. 

4.  The  words,  "in  common  with  the  subjects  of  His  Britannic 
Majesty,"  were  inserted  in  1818  at  the  instance  of  the  British 
Commissioners,  it  being  understood  at  the  time  by  the 
American  Commissioners  that  they  were  intended  to  pre- 
vent exclusion  of  British  fishermen  from  these  treaty  coasts. 
Later,  Great  Britain  interpreted  the  words  to  imply  subjec- 
tion to  regulation  in  common  with  British  fishermen. 

5.  The  liberty  to  dry  and  cure  fish  was  continued  "forever" 
in  1818,  but  with  changes  in  locality. 

6.  As  consideration,  the  United  States  "renounced  forever"  all 
other  liberties  possessed  under  the  Treaty  of  1783,  the  in- 
ference being  that  something  had  continued  from  1783  and 
was  perpetual  save  for  the  renunciation. 

7.  This  renunciation  was  to  be  effective  "within  three  marine 
miles  of  any  of  the  coasts,  bays,  creeks,  or  harbors  of  His 
Britannic  Majesty's  dominions  in  America  not   included 
within  the  above  mentioned  limits." 

8.  Entry,  however,  was  permitted  in  the  renounced  waters  for 
four  specified  purposes  and  for  no  other. 

9.  Such  entry  was  subject  to  the  restrictions  necessary  to  con- 
fine it  to  the  purposes  of  the  convention. 

The  Convention  of  1818  put  an  end  for  a  time  to  all  questions 
of  treaty  interpretation.  Great  Britain  supplemented  the  con- 
The  Controver-  vention  with  appropriate  governmental  action  by 
87—1818-1909  the  act  of  June  14,  1819,  empowering  the  Crown, 
by  regulations  and  instructions  to  colonial  fishery  officers,  to  give 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          183 

effect  to  the  purpose  of  the  convention,  and  by  the  orders  in  council 
which  issued  in  accordance  with  the  act.  Some  seizures  continued 
to  be  made,  but  they  became  questions  of  fact,  not  of  debatable 
right.  Nothing  happened  to  challenge  the  fisheries  settlement 
until  the  passage  in  1836  of  the  Nova  Scotia  Hovering  Act  by 
which  it  was  sought  to  prevent  infraction  of  the  revenue  laws  on 
the  part  of  American  fishing  vessels  by  making  it  an  offense 
punishable  by  confiscation  for  them  to  hover  under  suspicious 
circumstances  within  three  miles  of  the  Nova  Scotia  coast.  This 
act  was  adopted  by  the  British  Government  "as  the  rules,  regu- 
lations, and  restrictions  respecting  the  fisheries  on  the  coasts,  bays, 
creeks,  and  harbors  of  the  province  of  Nova  Scotia."  Some  seiz- 
ures were  made  under  the  Hovering  Act,  but  all  for  offenses  com- 
mitted within  the  ordinary  territorial  jurisdiction  of  three  miles 
from  the  shore.  In  1839,  however,  the  authorities  of  Nova  Scotia 
began  to  put  a  new  interpretation  upon  the  renunciation  clause 
in  so  far  as  it  applied  to  "bays."  The  term,  they  maintained,  was 
geographical  and  included  all  bays,  whatever  their  extent,  and 
corollary  to  this  was  advanced  the  "headland  theory,"  under 
which  the  jurisdictional  limit  of  three  miles  was  to  be  measured 
by  a  line  drawn  from  headland  to  headland  along  the  coast.  The 
privileges  of  entry  under  the  treaty  were  also  scrutinized  and 
made  difficult  of  enjoyment.  At  about  the  same  time  attempt 
was  made  to  compel  American  fishing  vessels  to  pay  light  dues  on 
their  passage  through  the  Strait  of  Canso,  which  was  claimed  by 
the  United  States  as  part  of  the  high  seas  and  not  at  all  within  the 
scope  of  the  renunciation  clause  of  the  Convention  of  1818.  Fresh 
seizures  were  made  in  accordance  with  these  new  interpretations, 
notably  that  of  the  Washington  in  the  Bay  of  Fundy  and  that  of 
the  Argus  off  the  coast  of  Cape  Breton,  in  each  case  far  beyond 
three  miles  from  shore.  Both  seizures  were  protested  by  the 
United  States,  and  under  the  claims  of  the  Convention  of  1853 
favorable  awards  were  obtained. 

In  1854  all  disputes  over  fishing  rights  were  for  a  time  termi- 
nated by  the  Reciprocity  Treaty  negotiated  among  other  reasons 
"to  avoid  further  misunderstanding  ...  in  regard  to  the  extent 
of  the  right  of  fishing  on  the  coasts  of  British  North  America." 
Under  this  treaty  the  American  fishing  liberties  of  1818  were 


1 84  SERVITUDES  AND  LEASES 

extended  so  as  to  operate  in  all  coast  waters  of  the  provinces 
(with  the  exception  of  Newfoundland  whose  participation  in  the 
treaty  was  to  be  upon  conditions)  in  return  for  similar  liberties 
accorded  British  fishermen  in  the  waters  of  the  United  States 
north  of  the  thirty-sixth  parallel  of  north  latitude.  This  recip- 
rocal agreement  remained  in  force  until  1866,  being  terminated 
in  that  year  by  notice  from  the  United  States,  given  in  accordance 
with  .the  fifth  article  of  the  treaty.  Thereupon,  the  status  of 
fishing  rights  reverted  back  to  the  Convention  of  1818.  To  avoid 
temporarily  a  revival  of  the  former  controversies,  American 
fishermen  were  allowed  to  enjoy  the  privileges  they  had  had  under 
the  Reciprocity  Treaty  on  payment  of  special  licenses,  but  in 
1870  this  system  was  discontinued. 

In  1867  the  provinces  of  Canada,  New  Brunswick,  and  Nova 
Scotia  confederated  and  after  that  time  jurisdiction  over  their 
fisheries  was  vested  in  the  Dominion  Government.  Newfound- 
land remained  outside  the  Confederation,  as  she  still  does,  and 
her  legislation  is  always  to  be  considered  apart  from  that  of 
Canada.  The  remaining  maritime  province,  Prince  Edward 
Island,  entered  the  Dominion  in  1873.  One  of  the  diplomatic 
difficulties  throughout  the  whole  controversy,  and  especially  in 
its  later  years,  has  been  the  virtual  independence  of  Canada  and 
Newfoundland  with  respect  to  fishery  legislation,  coupled  with 
the  international  responsibility  of  Great  Britain  for  the  same.  In 
1868  and  1870  legislation  was  enacted  by  the  Dominion  Parlia- 
ment "respecting  fishing  by  foreign  vessels"  which  was  more 
severe  in  its  application  than  the  Nova  Scotia  Hovering  Act  of 
1836.  In  particular  several  seizures  were  made  for  the  offense  of 
purchasing  bait  within  Canadian  waters,  held  by  the  Canadian 
courts  to  be  "a  preparing  to  fish"  within  the  meaning  of  the  acts. 
The  Government  of  the  United  States  was  contemplating  retalia- 
tory measures,  —  among  them  the  suspension  of  the  bonding 
privilege  extended  to  Canadian  goods  when  in  transit  through 
the  United  States,  —  but  before  any  such  action  became  neces- 
sary a  joint  high  commission  met  in  Washington  in  1871  to  settle 
outstanding  differences  between  the  two  nations.  The  result  of 
their  negotiations  was  the  Treaty  of  Washington,  which,  in  so 
far  as  it  dealt  with  the  fisheries,  virtually  revived  the  reciprocal 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          185 

arrangements  of  1854  save  that  the  limit  for  British  fishing  in 
American  waters  was  now  39°  north  latitude.  The  fishery  pro- 
visions of  the  Treaty  of  Washington  went  into  effect  in  1873  (m 
Newfoundland  in  1874)  and  expired,  again  by  notice  from  the 
United  States,  in  1885,  after  which  date  the  Convention  of  1818 
for  the  third  time  became  the  measure  of  American  fishing  rights. 

As  Great  Britain  contended  that  the  United  States  was  re- 
ceiving the  more  valuable  consideration,  it  was  provided  in  the 
Treaty  of  Washington  that  a  commission  should  determine  the 
difference  in  value,  if  any,  between  the  two  reciprocal  conces- 
sions and  award  a  corresponding  amount  to  Great  Britain  in  com- 
pensation. This  commission  met  in  Halifax  hi  1877  and  awarded 
to  Great  Britain' $5, 500,000,  which  sum  was  duly  paid  by  the 
United  States. 

The  agreement  of  1871,  however,  failed  to  remove  the  sources  of 
friction.  Local  regulations,  especially  in  Newfoundland,  were 
disregarded  by  American  fishermen  as  contravening  treaty  rights, 
and  the  attempt  to  enforce  them  led  to  occasional  collisions.  The 
most  serious  of  these  occurred  at  Fortune  Bay  in  Newfoundland 
on  January  6,  1878,  when  American  fishermen  were  attacked  by 
the  inhabitants  and  forcibly  prevented  from  taking  fish,  the 
reason  assigned  being  the  infringement  of  Newfoundland  laws 
preventing  Sunday  fishing  as  well  as  the  use  of  seines  at  that 
season  of  the  year.  This  raised  in  a  direct  manner  the  question 
as  to  whether  fishing  liberties  held  "in  common  with  the  subjects 
of  Her  Britannic  Majesty"  could  be  restricted  in  their  exercise 
by  colonial  or  British  regulation.  The  treaty  involved  in  this 
case  was  that  of  1871  under  which  all  coast  waters  were  open  to 
Americans,  but  the  same  question  was  later  at  issue  within  the 
limits  of  the  treaty  coast  on  the  revival  in  1885  of  the  Convention 
of  1818.  The  Fortune  Bay  incident  was  settled  in  1881  by  the 
payment  by  Great  Britain  of  £15,000  by  way  of  damages,  but 
"without  prejudice  to  any  question  of  the  rights  of  either  of  the 
two  governments"  under  the  Treaty  of  1871.  The  incident,  how- 
ever, implying  as  it  did  the  claim  of  Newfoundland  to  legislate  for 
American  fishermen,  together  with  the  dissatisfaction  of  the 
United  States  over  the  award  of  the  Halifax  Commission,  was 
responsible  for  the  failure  to  renew  the  Treaty  of  Washington. 


1 86  SERVITUDES  AND  LEASES 

On  the  termination  of  the  Treaty  of  Washington,  the  Canadian 
Government  revived  its  fishing  regulations  and  gave  instructions 
that  they  be  strictly  enforced.  With  respect  to  foreign  fishermen, 
the  fishery  officers  were  "to  see  that  they  obey  the  laws  of  the 
country,  that  they  do  not  molest  British  fishermen  in  the  pursuit 
of  their  calling,  and  that  they  observe  the  regulation  of  the  fish- 
ing laws  in  every  respect;"  and  they  were  also  "to  prevent 
foreign  fishing  vessels  and  boats  which  enter  bays  and  harbors 
for  the  four  legal  purposes  .  .  .  from  taking  advantage  thereof 
to  take,  dry,  or  cure  fish  therein,  to  purchase  bait,  ice,  or  supplies, 
or  to  trans-ship  cargoes  or  from  transacting  any  business  in  con- 
nection with  their  fishing  operations."  In  accordance  with  these 
restrictions,  seizures  began  again  to  occur,  at  which  vigorous 
diplomatic  protest  was  made  by  the  United  States,  followed  up  in 
1887  by  the  passage  of  a  retaliatory  act  to  be  enforced  at  the  dis- 
cretion of  the  President.  But  the  same  year  proposals  were  made 
for  a  new  treaty  and  negotiations  were  held  at  Washington  by 
joint  commissioners,  who,  on  February  15,  1888,  signed  a  new 
agreement  on  the  fisheries,  which,  however,  failed  to  secure  the 
consent  of  the  Senate  of  the  United  States.  Pending  ratification 
of  the  treaty  the  commissioners  agreed  to  a  modus  vivendi,  which 
temporarily  removed  all  difficulties  and  which,  despite  the  failure 
of  the  treaty,  was  continued  hi  force  by  Canada  down  to  1910. 
Newfoundland  obviated  further  disputes  by  a  system  of  licenses 
permitting  the  purchase  of  bait  and  supplies  and  the  shipment 
of  crews  for  foreign  vessels. 

In  1892  an  effort  was  made  to  improve  relations  between  the 
United  States  and  Newfoundland  by  the  so-called  Blaine-Bond 
Treaty,  which  Great  Britain  failed  to  ratify  because  of  Canadian 
opposition.  In  1902  another  treaty  was  negotiated,  the  Hay- 
Bond  Convention,  but  it,  too,  failed  of  ratification,  this  time  in  the 
Senate  of  the  United  States.  By  way  of  retaliation,  Newfound- 
land, after  1905,  began  to  refuse  American  fishermen  licenses  and 
to  enact  legislation  calculated  to  make  the  exercise  of  American 
fishing  rights  as  difficult  as  possible.  Regulations  as  to  the  days, 
hours,  and  manner  of  fishing  were  enforced,  Newfoundlanders 
were  forbidden  to  be  employed  on  foreign  vessels  in  treaty  waters, 
and  entry  and  clearance  at  custom-houses  were  required  of 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          187 

American  fishing  vessels,  as  well  as  payment  of  light  and  harbor 
dues.  These  measures  drew  immediate  protest  from  the  Govern- 
ment of  the  United  States  and  in  consequence  the  whole  question 
of  American  fishing  rights  under  the  Convention  of  1818  was  re- 
opened. The  positions  taken  were  found  to  be  irreconcilable 
through  diplomacy,  but,  on  the  suggestion  of  the  United  States, 
it  was  decided  to  have  recourse  to  arbitration,  with  the  result 
that  after  much  time  and  care  a  form  of  submission  was  agreed 
upon.  Meanwhile,  a  modus  vivendi,  renewed  annually,  prevented 
further  trouble  in  Newfoundland  waters. 

Under  the  special  agreement  to  arbitrate,  the  tribunal  was  to 
be  chosen  from  the  Permanent  Court  of  Arbitration  at  The  Hague 
and  its  procedure  was  substantially  that  laid  down   TheArbitra- 
in  the  Convention  for  the  Pacific  Settlement  of  Inter-   tion  of  x»10 
national  Disputes  of  1907.    Should  any  question  be  raised  as  to 
the  reasonableness  of  any  regulation,  the  tribunal  might  refer 
such  question  to  a  commission  of  experts.    At  the  same  time  it 
was  empowered  to  recommend  rules  and  a  method  of  procedure 
for  the  determination  of  any  questions  arising  in  the  future  as  to 
the  exercise  of  the  fishing  liberties. 

The  personnel  of  the  tribunal  was  chosen  by  direct  agreement, 
as  follows:  Dr.  Lammasch,  of  Austria,  who  presided;  Dr.  A.  F. 
de  Savornin  Lohman,  of  the  Netherlands;  Dr.  Drago,  of  the 
Argentine  Republic;  Judge  Gray,  of  the  United  States  Circuit 
Court  of  Appeals;  and  Sir  Charles  Fitzpatrick,  Chief  Justice  of 
Canada.  Each  party  was  represented  by  an  agent,  Great  Britain 
by  the  Honorable  A.  B.  Aylesworth,  the  United  States  by  the 
Honorable  Chandler  P.  Anderson.  There  was  a  large  array  of 
counsel  on  each  side,  chief  among  whom  were  Senator  Root  for 
the  United  States  and  Sir  Robert  Finlay  for  Great  Britain.  The 
tribunal  convened  on  July  i,  1910,  and  held  forty-one  sessions, 
rendering  its  award  on  September  7,  1910. 

As  has  been  already  indicated,  the  arbitral  submission  called 
for  the  interpretation  of  article  i  of  the  Convention  of  1818. 
The  scope  of  arbitration  was  slightly  narrowed  by  an  agreement, 
in  an  exchange  of  notes,  to  omit  any  question  as  to  the  Bay  of 
Fundy  or  the  right  of  innocent  passage  through  the  Gut  of  Canso, 
there  being  in  the  present  arbitration  no  prejudice  to  the  respec- 


1 88  SERVITUDES  AND  LEASES 

tive  contentions  on  either  side.  But  apart  from  this,  all  the 
controversy  of  the  century  was  summed  up  in  a  series  of  seven 
questions  submitted  to  the  tribunal  for  decision.  For  the  sake  of 
convenience  each  question,  with  that  part  of  the  award  bearing 
upon  it,  will  be  discussed  separately. 
_  .  _  "  To  what  extent  are  the  following  contentions  or 

Question  One         .  , 

either  of  them  justified? 

"It  is  contended  on  the  part  of  Great  Britain  that  the  exercise 
of  the  liberty  to  take  fish  referred  to  in  the  said  article,  which 
the  inhabitants  of  the  United  States  have  forever  in  common  with 
the  subjects  of  His  Britannic  Majesty,  is  subject,  without  the 
consent  of  the  United  States,  to  reasonable  regulation  by  Great 
Britain,  Canada,  or  Newfoundland,  hi  the  form  of  municipal  laws, 
ordinances,  or  rules,  as,  for  example,  to  regulations  in  respect  of 
(i)  the  hours,  days,  or  seasons  when  fish  may  be  taken  on  the 
treaty  coasts;  (2)  the  method,  means,  and  implements  to  be  used 
in  the  taking  of  fish  or  in  the  carrying  on  of  fishing  operations  on 
such  coasts;  (3)  any  other  matters  of  a  similar  character  relating 
to  fishing;  such  regulations  being  reasonable,  as  being,  for 
instance  — 

"  (a)  Appropriate  or  necessary  for  the  protection  and  preserva- 
tion of  such  fisheries  and  the  exercise  of  the  rights  of  British 
subjects  therein  and  of  the  liberty  which  by  the  said  article 
i  the  inhabitants  of  the  United  States  have  therein  in  com- 
mon with  British  subjects; 

"  (6)  Desirable  on  grounds  of  public  order  and  morals; 

"  (c)  Equitable  and  fair  as  between  local  fishermen  and  the  in- 
habitants of  the  United  States  exercising  the  said  treaty 
liberty,  and  not  so  framed  as.  to  give  unfairly  an  advantage 
to  the  former  over  the  latter  class. 

"It  is  contended  on  the  part  of  the  United  States  that  the  exer- 
cise of  such  liberty  is  not  subject  to  limitations  or  restraints  by 
Great  Britain,  Canada,  or  Newfoundland  in  the  form  of  municipal 
laws,  ordinances,  or  regulations  in  respect  of  (i)  the  hours,  days, 
or  seasons  when  the  inhabitants  of  the  United  States  may  take 
fish  on  the  treaty  coasts;  or  (2)  the  method,  means,  and  imple- 
ments used  by  them  in  taking  fish  or  in  carrying  on  fishing  opera- 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          189 

tions  on  such  coasts;  or  (3)  any  other  limitations  or  restraints  of 
similar  character  — 

"  (a)  Unless  they  are  appropriate  and  necessary  for  the  protec- 
tion and  preservation  of  the  common  rights  in  such  fisheries 
and  the  exercise  thereof;  and 

"  (6)  Unless  they  are  reasonable  in  themselves  and  fair  as  be- 
tween local  fishermen  and  fishermen  coming  from  the 
United  States,  and  not  so  framed  as  to  give  an  advantage 
to  the  former  over  the  latter  class;  and 

"  (c)  Unless  their  appropriateness,  necessity,  reasonableness, 
and  fairness  be  determined  by  the  United  States  and  Great 
Britain  by  common  accord  and  the  United  States  con- 
curs in  their  enforcement." 

It  will  be  noticed  that  in  the  submission  of  this  question  both 
parties  are  in  substantial  accord  as  to  the  necessity  of  regulations 
and  as  to  the  nature  of  them:  they  must  in  all  cases  be  "reason- 
able." The  main  contention  is  over  what  is  "reasonable  regula- 
tion." "Reasonableness"  as  a  standard  is  liable  to  vary.  Who 
shall  be  the  judge?  Shall  Great  Britain  alone,  in  virtue  of  her 
territorial  sovereignty,  determine  what  is  reasonable  for  them  or 
shall  such  reasonableness  be  a  matter  for  "common  accord"? 
"The  two  parties,"  said  Mr.  Root,  "approach  the  subject  of  the 
first  question  from  different  points  of  view.  .  .  .  Great  Britain 
states  the  question  as  a  question  relating  to  the  exercise  of  her 
sovereign  rights.  The  United  States  states  the  question  as  relating 
to  the  inviolability  of  her  grant  of  right."  The  essential  point  to 
establish,  the  United  States  maintained,  was  just  what  power  to 
regulate  remained  with  Great  Britain  after  she  had  given  up  ex- 
clusive sovereignty  by  the  "grant"  to  the  United  States  of  an 
equal  right  in  the  fishery. 

This  contention  that  Great  Britain  had  limited  her  sovereignty 
was  equivalent  to  asserting  that  she  had  instituted  a  servitude 
for  the  benefit  of  the  United  States  and  it  necessitated  an  exhaus- 
tive examination  of  the  history  and  the  significance  of  the  doctrine 
of  international  servitudes,  especially  hi  its  bearing  upon  the 
concept  of  the  sovereignty  of  states.  The  doctrine,  it  was  argued, 
was  well  established  in  modern  international  law,  having  passed  by 


190  SERVITUDES  AND  LEASES 

analogy  from  Roman  law  and  having  been  continually  confirmed 
by  international  practice.  The  essentials  of  a  servitude  were,  that 
it  was  created  by  one  state,  the  servient  state,  for  the  benefit  of 
another  state,  the  dominant  state;  that  its  permanency  was  be- 
yond the  control  of  the  state  creating  it;  and  that  it  made  the  ter- 
ritory of  the  one  state  serve  the  interest  of  the  other.  All  three 
essentials  were  present  in  the  treaty  right  of  1818:  (i)  it  could  be 
enjoyed  only  through  the  "inhabitants,"  that  is,  the  "people"  of 
the  United  States,  being  thus  in  effect  a  grant  to  "the  United 
States,"  for  in  a  republic  sovereignty  resides  in  the  body  of  the 
people;  (2)  the  right  was  to  be  in  perpetuity  —  in  1818  the  word 
"forever"  was  inserted;  and  (3)  it  made  certain  specified  coasts 
serve  the  economic  interest  of  the  United  States.  Unless  other- 
wise stated,  the  concurrent  exercise  of  a  servitude  was  presumed 
(concurrent,  that  is,  with  the  servient  state's  enjoyment  of  the 
subject-matter  of  the  servitude),  but  a  servitude  limited  the 
power  of  the  state  granting  it  to  the  extent  that  the  full  exer- 
cise of  sovereign  power  was  inconsistent  with  the  full  enjoyment 
of  the  servitude.  The  United  States  did  not  contend  that 
the  sovereignty  of  Great  Britain  over  the  treaty  coasts  was 
limited  for  the  general  purposes  of  jurisdiction,  but  she  did 
contend  that,  in  the  matter  of  the  common  fishery  rights,  there 
had  been  a  transfer  of  sovereignty  to  the  extent  required  for  the 
fulfillment  of  the  treaty,  or,  if  not  an  actual  transfer,  an  implied 
undertaking  not  to  exercise  sovereignty  where,  by  so  exercising 
it,  the  enjoyment  of  the  liberty  might  be  impaired.  To  quote 
Mr.  Root's  argument,  "one  of  the  essential  qualities  of  this  grant 
...  is  that  it  is  removed  from  the  exercise  of  the  powers  of  sover- 
eignty of  Great  Britain  .  .  .  and  is  vested  alone  in  the  sover- 
eign to  which  the  grant  was  made.  The  sovereignty  to  which 
the  grant  was  made  .  .  .  arrogating  to  itself  the  right  to  control 
its  own  inhabitants,  to  condition  the  right  to  them,  is  exercising 
that  which  is  the  right  of  the  sovereign  to  which  it  is  granted  and 
not  the  right  of  the  sovereign  making  the  grant.  .  .  .  When  the 
grant  limited  British  sovereignty,  it  excluded  British  sovereignty 
from  the  field  of  operation  commensurate  with  the  right  granted 
according  to  its  terms." 
The  force  of  this  argument  depended  upon  the  meaning  attached 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          191 

to  the  terms  "liberty"  and  "in  common."  The  United  States 
held  "liberty"  in  the  treaty  to  be  synonymous  with  "right,"  cit- 
ing its  common-law  meaning  of  "franchise,"  especially  that  pecul- 
iar form  of  franchise  known  as  "incorporeal  hereditament,"  such 
as  grants  of  forest,  park,  and  fishery.  It  was  natural  for  both 
common-law  countries  to  attach  the  same  meaning  to  the  word. 
The  "French  shore"  fishery  was  a  "right,"  yet  the  word  "liberty" 
had  been  used  to  describe  it  in  the  Treaty  of  1763.  Later,  in  the 
reciprocity  agreements  of  1854  and  1871,  the  two  words  were 
treated  as  synonymous.  The  intent  of  the  negotiators  in  1783 
was  to  establish  a  "right,"  though  they  had  used  the  word  "lib- 
erty," and  the  word  had  been  continued  in  1818.  According  to 
John  Adams  "liberty"  in  the  treaty  of  peace  was  substituted  for 
"right"  at  the  request  of  the  British  negotiators  who  thought 
the  word  "right"  would  be  unpleasant  to  British  ears.  The  ex- 
pression "in  common"  was  likewise  used  in  a  technical  sense  well 
known  to  both  parties,  conforming  thus  to  an  accepted  canon  of 
treaty  construction.  In  1818  it  would  be  understood  to  denote 
"a  common  and  equal  right  as  opposed  to  a  several  or  exclusive 
right;"  hence  the  "liberty"  of  the  treaty  was  "to  be  enjoyed  by 
neither  to  the  exclusion  of  the  other."  While  this  argued  against 
exclusive  regulation  by  Great  Britain  it  did  not  imply  lack  of 
regulation,  for  joint  administration  of  property  rights  by  nations 
was  feasible  and  in  this  case  was  demanded  by  self-interest,  and 
it  had  good  precedent  in  the  joint  regulation  of  the  "French 
shore"  fishery  by  Great  Britain  and  France.  The  words  "in 
common,"  it  was  suggested,  were  inserted  by  Great  Britain  to 
save  herself  from  future  trouble  over  French  rights  in  the  same 
localities,  as  well  as  to  prevent  any  exclusion  of  British  by  Ameri- 
can fishermen,  of  which  complaint  had  been  made  by  Lord  Bath- 
urst  before  the  Convention  of  1818  had  been  negotiated.  Because 
American  fishermen  had  the  "liberty  in  common"  with  British 
fishermen  and  because  Great  Britain  could  regulate  the  exercise 
of  the  fishing  rights  of  the  latter,  it  did  not  follow  that  she  could 
extend  her  power  to  regulate  to  the  "liberty"  of  the  former;  "it 
is  a  right  that  the  inhabitants  of  the  United  States  are  to  have  in 
common;  it  is  not  that  it  is  to  be  exercised  in  common  with  British 
subjects."  If  the  fishing  "  liberty  "  were  analogous  to  trading  privi- 


192  SERVITUDES  AND  LEASES 

leges  and  if  Great  Britain  had  intended  to  retain  the  power  to 
regulate,  there  would  have  been  express  mention  of  it  in  the 
treaty,  as  there  had  been  in  all  the  commercial  treaties  negotiated 
up  to  that  time  between  the  two  countries.  The  provisions  in  the 
French  treaties  were  very  similar  to  the  treaty  with  the  United 
States  in  1783;  Great  Britain  had  never  attempted  to  regulate 
the  French  fishery;  hence  there  was  no  reason  why  she  should 
regulate  the  American.  That  Great  Britain  might  promise 
reasonable  regulation  removed  no  difficulties,  for  the  power  to 
make  reasonable  regulation  was  tantamount  to  regulation  at  will 
as  long  as  the  regulating  state  was  the  judge  of  the  reasonableness. 
Great  Britain  and  her  colonies  had  no  superior  economic  or  moral 
insight;  on  the  contrary,  colonial  legislatures  had  regulated  un- 
reasonably in  that  they  had  discriminated  in  favor  of  local  fisher- 
men. 

In  a  word,  a  servitude  had  been  created,  no  right  to  regulate 
had  been  reserved  to  Great  Britain  and,  failing  such,  nothing 
affecting  American  fishing  rights  could  be  done  without  the  con- 
sent of  the  United  States. 

In  joining  issue  on  the  doctrine  of  servitudes,  Great  Britain 
admitted  their  existence  in  international  law,  but  held  it  danger- 
ous to  press  too  closely  their  analogy  with  private  law.  No  servi- 
tude, however,  had  been  created  in  1818,  for  the  essence  of  a 
servitude  is  territory,  servient  and  dominant,  whereas  under  the 
treaty  the  grant  was  one  to  be  personally  enjoyed  by  the  "in- 
habitants of  the  United  States."  No  sovereign  rights  had  been 
granted,  for  such  rights  are  fundamental  and  could  be  transferred 
only  in  express  terms,  leaving  no  doubt  of  intention.  Sovereignty 
was  always  considered  to  remain  unless  explicitly  abrogated;  it 
was  personal  and  unitary  and  could  not,  on  the  modern  view  of 
it,  be  partitioned.  The  right  to  legislate  was  implied  in  sover- 
eignty, and  as  the  Treaty  of  1818  did  not  touch  sovereignty,  it 
left  this  right  solely  with  Great  Britain.  A  fishing  "liberty"  — 
which,  in  the  British  argument,  meant  a  "permission"  —  when 
granted  was  always  given  subject  to  regulation  by  the  sovereign 
grantor,  unless  an  exception  was  made  explicitly  in  the  grant. 
In  1818  the  right  of  regulation  was  merged  in  the  subject-matter 
of  the  treaty;  the  United  States  partook  of  the  subject-matter  and 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          193 

therefore  came  under  regulation  "in  common  with  subjects  of 
His  Britannic  Majesty,"  implying  that,  as  the  fishery  was  a 
regulated  one  for  British  fishermen,  it  was  equally  so  for  fisher- 
men of  the  United  States.  Jurisdiction  over  fishing  rights  could 
not  be  conferred  upon  the  United  States  without  involving  juris- 
diction on  land,  with  the  result  that  the  United  States  would  be 
exercising  jurisdiction  on  British  territory,  a  situation  to  which 
Great  Britain  could  not  give  assent.  The  history  of  Anglo- 
American  treaty  relations  did  not  support  either  exemption  from, 
or  participation  in,  the  right  to  regulate.  Exemption  might  lead 
to  anarchy  on  the  fishing  ground.  Participation,  by  requiring  its 
concurrence,  would  in  effect  give  the  United  States  the  exclusive 
decision  as  to  what  was  reasonable  regulation,  a  situation  incon- 
sistent with  the  legislative  independence  of  Great  Britain  and 
her  colonies. 

In  its  award  on  Question  One  the  tribunal  gave  its  decision 
against  the  claim  of  the  United  States  to  a  servitude  in  the  fish- 
eries. The  doctrine  of  international  servitudes,  it  was  pointed 
out,  was  unfamiliar  to  American  and  British  publicists  in  1818. 
It  was  not  consistent  with  modern  political  theory  "owing  to  the 
constitution  of  a  modern  state  requiring  essential  sovereignty  and 
independence,"  but  had  been  developed  hi  the  peculiar  relations, 
now  obsolete,  of  the  Holy  Roman  Empire.  Because  of  this  lack 
of  adaptation,  especially  to  the  principles  of  constitutional  gov- 
ernments, "it  could,  therefore,  in  the  general  interest  of  the  com- 
munity of  nations  and  of  the  parties  to  this  treaty  be  affirmed  by 
this  tribunal  only  on  the  express  evidence  of  an  international 
contract."  Apart  from  these  considerations,  "by  the  Treaty  of 
1818  one  state  grants  a  liberty  to  fish,  which  is  not  a  sovereign 
right  but  a  purely  economic  right,  to  the  inhabitants  of  another 
state,"  there  being  no  analogy  of  dominant  and  servient  territory. 
The  fishery  to  which  admission  was  given  was  a  regulated  one  in 
1818,  and  the  words  "in  common  with  British  subjects"  implied 
that  the  inhabitants  of  the  United  States  came  under  a  com- 
mon regulation.  The  contention  that  these  words  were  in- 
tended merely  to  negative  exclusion  of  British  fishermen  was 
not  supported  "by  the  historical  basis  of  the  American  fishing 
liberty,"  for  the  same  words  in  the  same  connection  occurred  in 


194  SERVITUDES  AND  LEASES 

1854  and  1871,  when  no  such  interpretation  could  possibly  be 
put  upon  them. 

The  tribunal  also  found  itself  unable  to  accept  the  alternative 
contention  of  the  United  States  that  the  sovereign  jurisdiction  of  * 
Great  Britain  was  limited  to  reasonable  regulation,  of  the  reason- 
ableness of  which  the  United  States  must  approve.  "Every 
state,"  it  said,  "has  to  execute  the  obligations  incurred  by  treaty 
bona  fide  and  is  urged  thereto  by  the  ordinary  sanctions  of  inter- 
national law."  The  right  of  a  state  to  regulate  admission  of 
foreigners  to  its  territory  was  everywhere  admitted  and  no  excep- 
tion in  this  respect  could  be  found  in  the  Convention  of  1818. 
Great  Britain,  as  the  local  sovereign,  was  "not  only  entitled  but 
obliged  to  provide  for  the  protection  and  preservation  of  the 
fisheries;"  but  that  the  United  States  should  exercise  a  right  of 
consent  "would  predicate  an  abandonment  of  its  independence 
in  this  respect  by  Great  Britain."  The  rights  of  legislation  were 
not  mentioned  in  the  treaty,  the  provisions  of  which  referred  only 
to  a  liberty  to  fish  in  common  and  "a  line  which  would  limit  the 
exercise  of  sovereignty  of  a  state  within  the  limits  of  its  own  ter- 
ritory can  be  drawn  only  on  the  ground  of  express  stipulation  and 
not  by  implication  from  stipulations  concerning  a  different  sub- 
ject-matter." The  claim  of  the  United  States,  if  conceded,  would 
amount  to  a  participation  in  the  domestic  legislation  of  Great 
Britain  and  her  colonies  "and  to  that  extent  would  reduce  those 
countries  to  a  state  of  dependence." 

In  accordance  with  the  reasons  given,  the  tribunal  decided  and 
awarded  as  follows: 

"The  right  of  Great  Britain  to  make  regulations  without  the 
consent  of  the  United  States  as  to  the  exercise  of  the  liberty  to 
take  fish,  referred  to  in  article  i  of  the  Treaty  of  October  20,  1818, 
in  the  form  of  municipal  laws,  ordinances,  or  rules  of  Great  Britain, 
Canada,  or  Newfoundland  is  inherent  to  the  sovereign  of  Great 
Britain. 

"The  exercise  of  that  right  by  Great  Britain  is,  however, 
limited  by  the  said  treaty  in  respect  to  the  said  liberties  therein 
granted  to  the  inhabitants  of  the  United  States  in  that  such  reg- 
ulations must  be  made  bona  fide  and  must  not  be  in  violation  of 
said  treaty." 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          195 

Inasmuch,  however,  as  there  was  agreement  on  both  sides  that 
Great  Britain  should  not  be  the  sole  judge  of  reasonableness  of 
fishing  regulations,  the  tribunal  further  decided  that  "  the  reason- 
ableness of  such  regulation,  if  contested,  must  be  decided  not  by 
either  of  the  parties  but  by  an  impartial  authority,"  and  it  made 
use  of  the  power  given  it  under  the  special  agreement  to  institute 
a  commission  of  three  expert  specialists  to  pass  upon  any  exist- 
ing regulations  requiring  examination,  the  third  member  of  the 
commission  being  a  non-national.  For  questions  arising  in  future, 
the  tribunal  recommended,  as  authorized,  rules  and  a  method 
of  procedure,  the  essential  feature  of  which  was  to  be  the  establish- 
ment of  permanent  mixed  fishery  commissions  for  Canada  and 
Newfoundland  respectively.  These  commissions,  similar  in  com- 
position to  the  one  designated  by  the  tribunal,  were  to  be  the 
arbitral  bodies  whose  decisions  in  the  countries  that  contested  the 
regulations  were  to  be  accepted  as  final.  That  part  of  the  special 
agreement  under  which  the  commissions  were  instituted  was  de- 
cided by  the  tribunal  to  be  "permanent  in  its  effect  and  not  ter- 
minable by  the  expiration  of  the  General  Arbitration  Treaty  of 
1908  between  Great  Britain  and  the  United  States." 

The  submission  of  the  second  question  was  as 

,  ,,  Question  Two 

follows: 

"Have  the  inhabitants  of  the  United  States,  while  exercising 
the  liberties  referred  to  in  the  said  article,  a  right  to  employ  as 
members  of  the  fishing  crews  of  their  vessels  persons  not  inhabit- 
ants of  the  United  States?" 

This  question  had  in  view  primarily  the  legislation  of  New- 
foundland forbidding  its  citizens  to  engage  as  members  of  crews 
of  American  fishing  vessels.  The  United  States  maintained  that 
the  fishing  liberty  was  in  the  vessels,  as  fishing  vessels,  and  that 
the  composition  of  their  crews  was  governed  by  the  ordinary  rules 
of  master  and  servant.  Those  receiving  the  liberty  —  the  in- 
habitants of  the  United  States  —  could  use  all  customary  means 
for  exercising  it,  including  the  engaging  of  crews,  the  nationality 
of  whom  was  under  no  restriction  in  the  treaty.  It  was  not  merely 
the  manual  act  of  catching  fish  that  constituted  the  liberty,  but 
also  the  more  important  enterprise  of  owning  and  operating  the 
vessels.  On  the  contrary,  Great  Britain  relied  on  the  explicit 


196  SERVITUDES  AND  LEASES 

words  of  the  treaty  —  "inhabitants."  Vessels,  as  vessels,  had 
no  rights.  The  effect  of  the  contention  of  the  United  States 
would  be,  in  theory,  to  throw  the  fisheries  open  to  the  world  and 
to  put  no  limit  to  fishing  operations  because  of  the  great  capital  the 
United  States  could  invest  under  these  conditions.  Further,  it 
was  not  inconsistent  with  the  treaty  for  Great  Britain  or  her  colo- 
nies to  regulate  the  employment  both  of  subjects  and  aliens 
within  their  jurisdiction,  for  otherwise  the  treaty  would  be  affect- 
ing a  sovereign  right. 

The  tribunal  answered  this  question  in  the  affirmative,  mainly 
on  the  ground  that  the  fishing  liberty  was  an  economic  right 
which  included  the  right  to  employ  servants  without  any  treaty 
limitation  as  to  nationality.  Hence  the  award: 

"Now,  therefore,  in  view  of  the  preceding  considerations,  this 
tribunal  is  of  opinion  that  the  inhabitants  of  the  United  States 
while  exercising  the  liberties  referred  to  in  the  said  article  have  a 
right  to  employ  as  members  of  the  fishing  crews  of  their  vessels 
persons  not  inhabitants  of  the  United  States.  But  in  view  of  the 
preceding  considerations  the  tribunal,  to  prevent  any  misunder- 
standing as  to  the  effect  of  its  award,  expresses  the  opinion  that 
non-inhabitants  employed  as  members  of  the  fishing  crews  of 
United  States  vessels  derive  no  benefit  or  immunity  from  the 
treaty  and  it  is  so  decided  and  awarded." 

Questions  These  two  questions  relating  to  a  specific  point 

Three  and  Four  o£  regulation  were  formulated  in  similar  terms. 
Question  Three  was  as  follows: 

"  Can  the  exercise  by  the  inhabitants  of  the  United  States  of  the 
liberties  referred  to  in  the  said  article  be  subjected,  without  the 
consent  of  the  United  States,  to  the  requirements  of  entry  or 
report  at  custom-houses  or  the  payment  of  light  or  harbor  or 
other  dues,  or  to  any  other  similar  requirement  or  condition  or 
exaction?" 

The  United  States  argued  that  fishing  vessels,  when  not  en- 
gaged in  commercial  pursuits,  should  not  be  subjected  to  what 
are  purely  commercial  requirements,  for  such  was  not  the  intent 
of  the  treaty.  Great  Britain  met  this  argument  with  the  conten- 
tion that  such  charges  were  normal  and  that  thus  it  was  incum- 
bent upon  the  United  States  to  prove  special  exemption.  Fishing 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          197 

vessels  were  often  disposed  to  contravene  the  revenue  laws  and 
the  only  effectual  means  of  prevention  was  to  require  entry  and 
report.  This  latter  argument  was  felt  by  the  tribunal  to  be  not 
unreasonable,  whenever  entry  or  report  was  feasible,  but  on  the 
question  as  such  the  decision  was  in  favor  of  the  United  States, 
as  follows: 

"The  requirement  that  an  American  fishing  vessel  should  re- 
port, if  proper  conveniences  for  doing  so  are  at  hand,  is  not  un- 
reasonable for  the  reasons  stated  in  the  foregoing  opinion.  There 
should  be  no  such  requirement,  however,  unless  there  be  reason- 
ably convenient  opportunity  afforded  to  report  in  person  or  by 
delegation  either  at  a  custom-house  or  to  a  customs  official.  But 
the  exercise  of  the  fishing  liberty  by  the  inhabitants  of  the  United 
States  should  not  be  subject  to  the  purely  commercial  formalities 
of  report,  entry,  and  clearance  at  a  custom-house  nor  to  light, 
harbor,  or  other  dues  not  imposed  upon  Newfoundland  fishermen." 

Question  Four  dealt  with  the  restrictions  under  the  renunci- 
atory clause  of  the  treaty: 

"Under  the  provision  of  the  said  article  that  the  American  fish- 
ermen shall  be  admitted  to  enter  certain  bays,  or  harbors  for 
shelter,  repairs,  wood,  or  water  and  for  no  other  purposes  what- 
ever, but  that  they  shall  be  under  such  restrictions  as  may  be 
necessary  to  prevent  then*  taking,  drying,  or  curing  fish  therein  or 
in  any  other  manner  abusing  the  privileges  thereby  reserved  to 
them,  is  it  permissible  to  impose  restrictions  making  the  exercise 
of  such  privileges  conditional  upon  the  payment  of  light  or  harbor 
or  other  dues  or  entering  or  reporting  at  custom-houses,  or  any 
similar  conditions?" 

The  tribunal  held  that  as  these  privileges  were  granted  upon 
grounds  of  humanity  and  hospitality,  it  would  be  inconsistent 
with  their  free  exercise  to  impose  conditions,  but  it  seemed  reason- 
able that  report  should  be  made,  if  convenient,  in  case  there  was 
intention  to  remain  longer  than  forty-eight  hours. 

"From  where  must  be  measured  the  'three  marine  miles  of 
any  of  the  coasts,  bays,  creeks,  or  harbors'  referred 

•;  .,,  '  Question  Five 

to  in  the  said  article? 

From  the  point  of  view  of  international  law  this  question  came 
next  in  importance  to  Question  One.  It  related,  in  effect,  to  the 


198  SERVITUDES  AND  LEASES 

meaning  of  the  word  "bays"  as  it  occurs  in  the  renunciatory 
clause  of  the  treaty  and  was  bound  up  with  the  thorough  dis- 
cussion of  marine  jurisdiction.  Great  Britain  held  that  the  term 
as  used  in  1818  was  geographical  and  inclusive  of  all  bays  of  what- 
ever size;  the  United  States  held  that  it  was  to  be  read  along  with 
its  context,  "coasts  .  .  .  creeks  or  harbors  of  His  Britannic 
Majesty's  dominions,"  as  meaning  territorial  bays,  that  is,  those 
smaller  bays  so  related  to  the  land  as  to  be  within  British  terri- 
torial jurisdiction  and  suitable  for  the  four  purposes  specified. 
According  to  the  British  contention  the  "three  marine  miles" 
should  be  measured  in  the  case  of  bays  from  a  line  drawn  from 
headland  to  headland;  according  to  the  American  contention 
the  line  called  for  should  follow  the  sinuosities  of  the  coast.  The 
United  States  argued  that  a  state,  if  it  wishes  to  extend  its  juris- 
diction beyond  the  customary  jurisdictional  zone,  must  assert  its 
right  to  do  so  and  secure  the  acquiescence  of  other  states  in  its 
assertion.  Great  Britain  had  never  claimed  such  jurisdiction 
over  the  bays  in  question  before  1818.  The  treaty  with  France 
in  1839  and  the  North  Sea  Fisheries  Convention  showed  that 
Great  Britain  had  not  exercised  general  jurisdiction  over  her  bays, 
for  in  those  cases  conventional  lines  of  jurisdiction  had  been  agreed 
upon.  In  the  negotiations  prior  to  the  unratified  treaty  of  1806, 
the  United  States  had  proposed  to  Great  Britain  an  extension 
of  marine  jurisdiction  so  as  to  include  waters  between  headlands, 
and  this  proposal  was  repeated  in  1818,  but  on  both  occasions 
Great  Britain  had  refused  assent.  The  inference  was  that  Great 
Britain  was  estopped  by  her  refusal  from  claiming  any  such  rights 
later.  In  the  diplomatic  correspondence  leading  up  to  the 
Convention  of  1818,  the  expressions  used  by  British  statesmen 
imported  that  the  subject-matter  of  the  controversy  was  the  ex- 
clusion of  American  fishermen  from  waters  within  territorial  juris- 
diction. This  limit,  in  1818,  was  well  established  in  international 
law  as  a  marine  league  and  it  still  remained  so.  Outside  of  that 
limit  there  had  been  no  renunciation,  for  every  independent 
state  had  a  natural  right  to  fish  on  the  high  seas.  The  intention 
of  the  American  negotiators  was  clear  on  the  point:  "In  signing 
it,"  one  of  them,  Mr.  Rush,  wrote  afterwards,  "we  believed  that 
we  retained  the  right  of  fishing  in  the  sea,  whether  called  a  bay, 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          199 

gulf,  or  by  whatever  term  designated,  that  washed  any  part  of 
the  coast  of  the  British  North  American  Provinces,  with  the  single 
exception  that  we  did  not  come  within  a  'marine  league  of  the 
shore.'"  The  seizures  made  under  the  "headland  theory" 
(supra,  p.  183)  had  not  been  sustained  when  referred  to  arbitra- 
tion, nor  had  Great  Britain  been  able  to  establish  her  position  in 
the  case  of  the  Bay  of  Fundy. 

In  her  arguments  in  reply,  Great  Britain  differentiated  through- 
out between  the  open,  unenclosed  waters  off  the  coast,  and  those 
in  "bays"  or  "chambers  between  headlands."  It  was  only  to 
the  former  that  the  three-mile  rule  applied;  the  latter  were  con- 
trolled by  other  considerations,  such  as  configuration,  relation  to 
land  and  naval  defenses,  the  necessities  of  commerce,  or  the  as- 
sumption of  jurisdiction  in  the  interests  of  the  domestic  order  of 
the  state.  For  some  or  all  of  these  reasons  the  United  States  had 
extended  its  jurisdiction  over  several  large  bays  on  its  coast-line, 
notably  Chesapeake  Bay  and  Delaware  Bay,  and  this  extension 
had  been  recognized  by  Great  Britain  and  other  states.  Similarly, 
the  British  jurisdiction  over  Conception  Bay  in  Newfoundland, 
assumed  to  exist  in  a  case  before  the  Privy  Council,  had  been 
acquiesced  in  by  the  United  States.  In  the  Strait  of  Fuca,  when 
the  Pacific  boundary  was  delimited,  the  line  of  jurisdiction  was 
run  out  far  beyond  three  miles.  The  Bay  of  Fundy  did  not  in- 
validate the  British  contention;  it  had  been  given  up  hi  that  case 
on  grounds  of  favor,  not  of  law.  Besides,  the  headlands  in  the 
Bay  of  Fundy  were  not  both  in  British  territory,  hence  the  "head- 
land theory"  could  not  be  applied.  The  British  contention  was 
for  a  historical  construction,  not  a  technical.  Far  from  there  being 
an  established  limit  in  1818,  both  the  United  States  and  Great 
Britain  were  at  that  time  urging  wide  extensions  of  jurisdiction. 
But  whatever  may  have  been  the  limit,  the  negotiators  used  the 
word  "bays"  in  the  general  meaning  of  that  word  as  required  by 
the  sense  of  the  treaty.  All  maps  in  1818  had  these  bays  indicated. 
There  was  no  qualification  in  the  treaty  and  hence  it  ought  to  be 
interpreted  as  it  read  and  as  it  was  interpreted  by  the  United 
States  herself,  when  she  called  upon  Great  Britain  in  1823  to  guar- 
antee her  liberty  under  the  treaty  as  against  the  French  attempts 
to  molest  American  fishermen  in  bays  beyond  the  three-mile 


200  SERVITUDES  AND  LEASES 

limit,  "clearly  within  the  jurisdiction  and  sovereignty  of  Great 
Britain." 

In  its  award  on  this  Question,  the  tribunal  accepted  the  argu- 
ments of  Great  Britain.  The  term  "bays"  in  its  opinion  applied 
to  "every  bay  on  the  coast  in  question  that  might  be  reasonably 
supposed  to  have  been  considered  as  a  bay  by  the  negotiators  of 
the  treaty  under  the  general  conditions  then  prevailing."  The 
geographical  character  of  a  bay  was  held  to  be  of  vital  importance 
to  the  interests  of  the  territorial  sovereign,  "but  as  no  principle 
of  international  law  recognized  any  specific  relation  between  the 
concavity  of  the  bay  and  the  requirements  for  control  by  the 
territorial  sovereignty,  this  tribunal  is  unable  to  qualify,  by  the 
application  of  any  new  principle,  its  interpretation  of  the  Treaty 
of  1 8 1 8  as  excluding  bays  in  general  from  the  strict  and  systematic 
application  of  the  three-mile  rule."  The  opinions  of  jurists  did 
not  point  to  its  unanimous  application  to  bays,  nor  had  it  been 
shown  that  its  application  "was  present  to  the  minds  of  the  nego- 
tiators in  1818  and  they  could  not  reasonably  have  been  expected 
either  to  presume  it  or  to  provide  against  its  presumption."  In 
the  geographical  sense,  as  accepted  by  the  tribunal,  "a  bay  is  to 
be  considered  as  an  indentation  of  the  coast,  bearing  a  configura- 
tion of  a  particular  character  easy  to  determine  specifically  but 
difficult  to  describe  generally." 

For  these  reasons  the  tribunal  decided  and  awarded  as  follows: 

"  In  case  of  bays  the  three  marine  miles  are  to  be  measured  from 
a  straight  line  drawn  across  a  body  of  water  at  the  place  where  it 
ceases  to  have  the  configuration  and  characteristics  of  a  bay.  At 
all  other  places  the  three  marine  miles  are  to  be  measured  follow- 
ing the  sinuosities  of  the  coast." 

But  to  make  the  award  more  practicable  without  claiming  to 
constitute  thereby  a  principle  of  international  law,  the  tribunal 
proceeded  to  recommend  to  the  parties,  and  to  apply  by  vir- 
tue of  its  powers  under  the  special  agreement,  the  ten-mile 
rule  already  applied  by  certain  fishery  treaties,  among  them 
the  North  Sea  Convention  and  the  treaties  between  France 
and  Great  Britain  in  1839  and  1867.  The  rule  was  enunciated 
as  follows: 

"In  every  bay,  not  hereinafter  specifically  provided  for,  the 


NORTH  ATLANTIC  FISHERIES  ARBITRATION          2OI 

limits  of  exclusion  shall  be  drawn  three  miles  seaward  from  a 
straight  line  across  the  bay  in  the  part  nearest  the  entrance  at  the 
first  point  where  the  width  does  not  exceed  ten  miles." 

For  the  bays  specifically  provided  for,  a  series  of  arbitrary  lines 
was  drawn  which  followed  in  general  those  laid  down  in  the  un- 
ratified  treaty  of  1888. 

The  award  on  this  Question  was  not  unanimous,  Dr.  Drago 
having  filed  a  dissenting  opinion,  though  signing  the  award  as  a 
whole.  He  maintained  that  the  treaties  and  the  practice  of  Great 
Britain  and  other  states  had  established  a  principle  for  territorial 
waters  —  the  three-mile  marginal  belt,  together  with  "the  ten- 
mile  entrance  rule  or  the  six  miles,  according  to  occasion,"  the 
extension  being  given  strictly  for  the  convenience  of  the  fisheries 
and  having  "its  root  and  connection  with  the  marginal  belt  of 
three  miles."  Apart,  however,  from  the  interpretation  it  had 
given  to  the  treaty,  the  decision  of  the  tribunal  in  his  opinion  was 
not  a  satisfactory  solution,  for  "no  rule  is  laid  out  or  general 
principle  evolved  for  the  parties  to  know  what  the  nature  of  such 
configuration  is  or  by  what  methods  the  points  should  be  ascer- 
tained from  which  the  bay  should  lose  all  the  characteristics  of 
such." 

"Have  the  inhabitants  of  the  United  States  the  liberty  under 
the  said  article  or  otherwise  to  take  fish  in  the  bays,  harbors,  and 
creeks  on  that  part  of  the  southern  coast  of  New- 

Question  Six 

foundland  which  extends  from  Cape  Ray  to  Rameau 
Islands  or  on  the  western  and  northern  coasts  of  Newfoundland 
from  Cape  Ray  to  Quirpon  Islands,  or  on  the  Magdalen  Islands?" 
This  question  was  one  of  purely  verbal  interpretation  and  re- 
lated to  a  construction  of  the  treaty  put  forward  by  the  Govern- 
ment of  Newfoundland  for  the  first  time  in  1905.  It  was  based 
on  the  omission  of  the  words  "bays,  harbors,  and  creeks"  in 
specifying  the  fishing  liberties  on  the  "coast"  of  Newfoundland 
and  on  the  "  shores  "  of  the  Magdalen  Islands,  and  if  adopted,  would 
have  deprived  American  fishermen  of  the  valuable  herring  fishery 
on  the  west  coast  of  Newfoundland.  The  award  on  this  Question 
held  that  "American  inhabitants  are  entitled  to  fish  in  the  bays, 
creeks,  and  harbors  of  the  treaty  coasts  of  Newfoundland  and  the 
Magdalen  Islands." 

SANTA  BARBARA  STATE  COLLEGE  LIBRA!  T 

LL  *  ^  ^  Q 


202  SERVITUDES  AND  LEASES 

"Are  the  inhabitants  of  the  United  States,  whose  vessels  resort 
to  the  treaty  coasts  for  the  purpose  of  exercising  the  liberties 
Question  referred  to  in  article  i  of  the  Treaty  of  1818,  entitled 
Seven  to  nave  for  these  vessels,  when  duly  authorized  by 

the  United  States  in  that  behalf,  the  commercial  privileges  on  the 
treaty  coasts  accorded  by  agreement  or  otherwise  to  the  United 
States  trading  vessels  generally?" 

When  the  American  fishing  liberties  were  secured  in  1818, 
colonial  trade  was  closed  to  foreign  vessels  and  hence  the  exercise 
of  American  trading  privileges  was  not  contemplated  in  the  treaty. 
In  1830,  however,  the  latter  were  acquired  by  reciprocal  agreement 
with  Great  Britain  without  any  reservation  in  the  case  of  fishing 
vessels.  Hence  the  question  arose  whether  American  vessels 
could  both  trade  and  fish  concurrently  on  the  treaty  coasts. 
Great  Britain  maintained  that  they  could  not,  basing  her  position 
on  a  strict  interpretation  of  intention  in  1818.  Besides,  the  failure 
to  maintain  the  distinction  between  fishing  and  trading  vessels 
would  conduce  to  smuggling.  The  United  States  claimed  the 
double  privilege  on  the  ground  that  there  was  nothing  in  the 
Treaty  of  1818  to  prevent  the  exercise  of  rights  acquired  later. 
The  right  to  trade  was  not  the  subject-matter  in  1818  nor  was 
the  right  to  fish  burdened  with  any  restriction  in  1830,  but  both 
rights,  once  obtained,  were  to  be  exercised  in  the  discretion  of  the 
United  States. 

This  Question  also  was  answered  in  favor  of  the  United  States, 
the  tribunal  being  of  opinion  that  "the  inhabitants  of  the  United 
States  are  so  entitled  in  so  far  as  concerns  this  treaty,  there  being 
nothing  in  its  provisions  to  disentitle  them,  provided  the  treaty 
liberty  of  fishing  and  the  commercial  privileges  are  not  exercised 
concurrently." 

(Proceedings,  12  vols.,  published  by  the  Government  Printing 
Office,  Washington;  American  Journal  of  International  Law  [191 1], 
vol.  v,  pp.  1-31;  [1913],  vol.  vn,  pp.  1-16;  Moore:  Digest  of  Inter- 
national Law,  vol.  I,  pp.  767-874;  G.  G.  Wilson,  The  Hague  Arbi- 
tration Cases.) 


LEASED  TERRITORY  IN  CHINA  203 

LEASED  TERRITORY  IN  CHINA  (1898) 

As  a  result  of  her  defeat  in  1894,  China  had  to  cede  to  Japan, 
by  the  Treaty  of  Shimonoseki,  April  17,  1895,  Formosa,  the 
Pescadores,  and  the  southern  portion  of  the  Province  of  Feng- 
tien  (the  Liao-tung  Peninsula).  In  addition,  an  indemnity  of 
200,000,000  taels  was  exacted,  the  Japanese  to  remain  in  occupa- 
tion of  Wei-hai-wei  until  the  last  installment  was  paid.  The  ces- 
sion of  Liao-tung  carried  with  it  the  possession  of  Port  Arthur,  a 
strategic  position  dominating  the  northern  approach  to  Peking. 
For  this  reason  soon  after  the  conclusion  of  the  treaty,  Russia, 
Germany,  and  France,  considering  their  vital  interests  in  China 
endangered,  addressed  a  collective  note  to  Japan,  in  which  they 
urged  the  retrocession  of  Liao-tung  to  China  in  order  to  preserve 
her  territorial  integrity.  Japan  assented  to  the  revision  of  the 
terms  in  return  for  an  increase  hi  indemnity. 

On  November  i,  1897,  two  German  missionaries  were  mur- 
dered in  the  Province  of  Shantung.  A  few  days  later  German 
warships  appeared  at  the  port  of  Kiao-chau,  and  an  ultimatum 
was  sent  to  the  commandant  requesting  him  to  evacuate  the 
place  within  forty-eight  hours.  This  was  followed  by  a  series  of 
demands  presented  to  the  Chinese  Government  calling  for  prompt 
reparation  and  the  payment  of  an  indemnity  for  the  loss  of  the 
missionaries'  lives.  Coupled  with  these,  was  a  demand  for  a 
lease  to  Germany  of  Kiao-chau,  "as  a  guarantee  of  good  behavior 
for  the  future."  China  yielded,  and  on  February  8,  1898,  the 
German  Foreign  Secretary  was  able  to  announce  in  the  Reichstag 
the  successful  negotiation  of  the  lease,  the  chief  provisions  of  which, 
as  embodied  in  the  Treaty  of  March  6,  1898,  were  as  follows: 

"Art.  i.  His  Majesty  the  Emperor  of  China,  guided  by  the  in- 
tention to  strengthen  the  friendly  relations  between  China  and 
Germany,  and  at  the  same  time  to  increase  the  military  readiness 
of  the  Chinese  Empire,  engages,  while  reserving  to  himself  all 
rights  of  sovereignty  in  a  zone  of  50  kilometres  (100  Chinese  /») 
surrounding  the  Bay  of  Kiao-chau  at  high  water,  to  permit  the 
free  passage  of  German  troops  within  this  zone  at  any  time,  as  also 
to  abstain  from  taking  any  measures,  or  issuing  any  ordinances 


204  SERVITUDES  AND  LEASES 

therein  without  the  previous  consent  of  the  German  Government, 
and  especially  to  place  no  obstacle  in  the  way  of  any  regulation  of 
the  water-courses  which  may  prove  to  be  necessary.  His  Majesty 
the  Emperor  of  China,  at  the  same  time,  reserves  to  himself  the 
right  to  station  troops  within  that  zone,  hi  agreement  with  the 
German  Government,  and  to  take  other  military  measures. 

"Art.  2.  With  the  intention  of  meeting  the  legitimate  desire 
of  His  Majesty  the  German  Emperor,  that  Germany,  like  other 
powers,  should  hold  a  place  on  the  Chinese  coast  for  the  repair 
and  equipment  of  her  ships,  for  the  storage  of  materials  and  pro- 
visions for  the  same,  and  for  other  arrangements  connected  there- 
with, HJS  Majesty  the  Emperor  of  China  cedes  to  Germany  on 
lease,  provisionally  for  ninety-nine  years,  both  sides  of  the  en- 
trance to  the  Bay  of  Kiao-chau.  Germany  engages  to  construct,  at 
a  suitable  moment,  on  the  territory  thus  ceded,  fortifications  for 
the  protection  of  the  buildings  to  be  constructed  there  and  of  the 
entrance  of  the  harbor. 

"Art.  3.  In  order  to  avoid  the  possibility  of  conflicts,  the  Im- 
perial Chinese  Government  will  abstain  from  exercising  rights  of 
sovereignty  in  the  ceded  territory  during  the  term  of  the  lease, 
and  leaves  the  exercise  of  the  same  to  Germany.  .  .  . 

"  Chinese  ships  of  war  and  merchant  vessels  shall  enjoy  the  same 
privileges  in  the  Bay  of  Kiao-chau  as  the  ships  of  other  nations  on 
friendly  terms  with  Germany;  and  the  entrance,  departure,  and 
sojourn  of  Chinese  ships  in  the  bay  shall  not  be  subject  to  any 
restrictions  other  than  those  which  the  Imperial  German  Govern- 
ment, in  virtue  of  the  rights  of  sovereignty  over  the  whole  of  the 
water  area  of  the  bay  transferred  to  Germany,  may  at  any  time 
find  it  necessary  to  impose  with  regard  to  the  ships  of  other 
nations.  .  .  . 

"Art.  5.  Should  Germany  at  some  future  time  express  the  wish 
to  return  Kiao-chau  Bay  to  China  before  the  expiration  of  the 
lease,  China  engages  to  refund  to  Germany  the  expenditure  she 
has  incurred  at  Kiao-chau,  and  to  cede  to  Germany  a  more  suit- 
able place. 

"Germany  engages  at  no  time  to  sublet  the  territory  leased 
from  China  to  another  power.  ..."  (Parliamentary  Papers 
[1899,]  (59),  China,  No.  i,  pp.  69-71.) 


LEASED  TERRITORY  IN  CHINA  205 

The  rent  payable  to  China,  the  Foreign  Minister  said,  was 
merely  nominal,  "representing  the  continuation  in  theory  of  the 
proprietorship  of  China  over  the  territory  ceded." 

While  negotiations  were  going  on  with  Germany,  it  was  an- 
nounced that  the  Chinese  Government  had  given  permission  to 
Russian  warships  to  winter  at  Port  Arthur.  The  Russian  Foreign 
Minister  was  careful  to  explain,  on  December  26,  that  this  "had 
absolutely  no  connection  with  the  occupation  of  the  Bay  of  Kiao- 
chau  by  Germany,"  but  that  Russia  "had  been  glad  to  accept 
the  offer  of  the  Chinese  Government."  Early  in  March,  1898, 
however,  Russia  demanded  a  lease  of  Port  Arthur  and  Talien  Bay, 
failing  which  she  would  take  hostile  measures.  Again  China  was 
forced  to  alienate  her  territory,  granting,  on  March  27,  1898,  a 
lease  in  the  following  terms: 

"Art.  i.  In  order  to  provide  for  Russia  a  suitable  basis  on  the 
northern  coast  of  China,  and  thereby  to  render  her  naval  position 
complete  and  secure,  His  Majesty  the  Emperor  of  China  agrees 
hereby  to  lease  Port  Arthur  and  Talien,  together  with  their  ad- 
jacent waters,  to  Russia:  Provided,  that  the  sovereign  rights  of 
the  Middle  Kingdom  shall  not  be  impaired  by  the  transaction.  .  .  . 

"Art.  3.  The  period  of  the  lease  shall  be  twenty-five  years  from 
date  of  signing  this  convention:  Provided,  that  at  the  conclusion 
of  that  period,  it  may  be  prolonged  by  mutual  agreement  between 
the  contracting  parties.  .  .  . 

"Art.  4.  ...  The  troops  of  the  Middle  Kingdom  shall  not  be 
permitted  to  encamp  within  the  limits  of  the  leased  land.  ...  In 
the  event  of  a  breach  of  the  law  by  a  Chinese  subject  he  shall  be 
handed  over  to  the  nearest  Chinese  local  tribunal  for  judgment 
and  the  infliction  of  a  penalty.  .  .  . 

"Art.  5.  Beyond  the  northern  boundary  of  the  leased  land  an 
uninhabited  space  shall  be  left,  its  limits  to  be  hereafter  deter- 
mined. .  .  .  All  affairs  within  this  space  shall  be  under  the  con- 
trol of  Chinese  officials,  but  Chinese  troops  may  not  enter  there 
except  after  consultation  with  the  Russian  authorities. 

"Art.  6.  The  contracting  authorities  agree  to  regard  Port 
Arthur  as  a  naval  station.  It  shall  be  used  by  Russian  and  Chinese 
ships  only,  and  neither  the  men-of-war  nor  the  merchantmen  of 
any  other  power  shall  have  access  to  it.  Similarly,  in  the  case 


206  SERVITUDES  AND  LEASES 

of  Talien  Bay,  one  part  shall  serve  as  a  naval  station  for  the 
warships  of  China  and  Russia,  but  the  rest  shall  be  a  commercial 
port,  open  for  the  ingress  and  egress  of  the  ships  of  all  nations. ..." 
(Foreign  Relations  of  the  United  States  [1898],  p.  184.) 

In  consequence  of  these  changes  in  the  Chinese  balance  of  power, 
it  became  necessary  for  the  other  powers  interested  to  make 
counter-moves.  Accordingly,  on  March  25,  1898,  Lord  Salisbury, 
the  British  Foreign  Secretary,  instructed  the  British  Minister  at 
Peking  that  it  was  "necessary  to  obtain,  in  the  manner  you  think 
most  efficacious  and  speedy,  the  refusal  of  Wei-hai-wei  on  the 
departure  of  the  Japanese.  The  terms  should  be  similar  to  those 
granted  to  Russia  for  Port  Arthur."  (Parliamentary  Papers 
[1898],  (54),  China,  No.  i,  p.  54.)  While  Great  Britain  was  medi- 
tating this  step,  the  Chinese  Government  granted  further  conces- 
sions, this  tune  to  France,  among  them  the  lease  for  ninety-nine 
years  of  Kwang-chau  Bay  on  the  southwestern  coast  of  China, 
which  port  France  proceeded  to  occupy  on  April  22,  1898.  The 
lease  of  Wei-hai-wei  to  Great  Britain  followed  on  July  i,  1898,  in 
terms,  as  follows: 

"In  order  to  provide  Great  Britain  with  a  suitable  naval  harbor 
in  North  China,  and  for  the  better  protection  of  British  commerce 
in  the  neighboring  seas,  the  Government  of  His  Majesty  the  Em- 
peror of  China  agrees  to  lease  to  the  Government  of  Her  Majesty 
the  Queen  of  Great  Britain  and  Ireland,  Wei-hai-wei  in  the  Prov- 
ince of  Shantung  and  the  adjacent  waters,  for  so  long  a  period 
as  Port  Arthur  shall  remain  in  the  occupation  of  Russia.  .  .  . 

".  .  .  Within  the  above-mentioned  territory  leased  Great 
Britain  shall  have  sole  jurisdiction. 

"Great  Britain  shall  have  in  addition  the  right  to  erect  forti- 
fications, station  troops,  or  take  any  other  measures  necessary 
for  defensive  purposes,  at  any  points  on  or  near  the  coast  of  the 
region.  .  .  .  Within  that  zone  Chinese  administration  will  not 
be  interfered  with,  but  no  troops  other  than  Chinese  or  British 
shall  be  allowed  therein. 

"It  is  also  agreed  that  within  the  walled  city  of  Wei-hai-wei 
Chinese  officials  shall  continue  to  exercise  jurisdiction  except  so 
far  as  may  be  inconsistent  with  naval  and  military  requirements 
for  the  defense  of  the  territory  leased. 


LEASED  TERRITORY  IN  CHINA  207 

"It  is  further  agreed  that  Chinese  vessels  of  war,  whether 
neutral  or  otherwise,  shall  retain  the  right  to  use  the  waters 
herein  leased  to  Great  Britain." 

In  addition,  Great  Britain  obtained  Kowloon  on  the  mainland 
opposite  Hong  Kong,  for  ninety-nine  years  on  terms  similar  to 
those  of  the  lease  of  Wei-hai-wei,  with  the  following  clause 
added: 

"If  cases  of  extradition  occur  they  shall  be  dealt  with  in  ac- 
cordance with  the  existing  treaties  between  Great  Britain  and 
China  and  the  Hong  Kong  Regulations."  (Treaties  between  China 
and  Foreign  States,  vol.  I,  pp.  347-50.) 

As  one  of  the  causes  of  the  Russo-Japanese  War  was  the  pres- 
ence of  Russia  in  the  Liao-tung  Peninsula,  the  Treaty  of  Ports- 
mouth, September  5,  1905,  provided  for  the  transfer  to  Japan  of 
Russia's  unexpired  lease,  as  follows: 

"The  Imperial  Russian  Government  transfer  and  assign  to  the 
Imperial  Government  of  Japan,  with  the  consent  of  the  Govern- 
ment of  China,  the  lease  of  Port  Arthur,  Talien,  and  adjacent 
territory  and  territorial  waters  and  all  rights,  privileges,  and  con- 
cessions connected  with  or  forming  part  of  such  lease,  and  they 
also  transfer  and  assign  to  the  Imperial  Government  of  Japan  all 
public  works  and  properties  in  the  territory  affected  by  the 
above-mentioned  lease. 

"The  two  high  contracting  parties  mutually  engage  to  obtain 
the  consent  of  the  Chinese  Government  mentioned  in  the  fore- 
going stipulation. 

"The  Imperial  Government  of  Japan  on  their  part  undertake 
that  the  proprietary  rights  of  Russian  subjects  in  the  territory 
above  referred  to  shall  be  perfectly  respected."  (Traites  et  Con- 
ventions entre  I' Empire -du  Japon  et  les  Puissances  Etrangeres,  vol.  i, 

p.  588-) 

In  1914,  Japan  entered  the  European  War  for  the  announced 
purpose  of  expelling  Germany  from  Kiao-chau  and  restoring  it  to 
China.  After  the  capture  of  Tsing-tau,  a  long  list  of  demands  was 
made  by  Japan  upon  China,  several  of  them  referring  to  the  leases 
of  Port  Arthur  and  Kiao-chau.  Much  negotiation  followed,  but 
in  May,  1915,  a  compromise  was  reached,  the  terms  of  which,  in 
the  matter  of  the  leases,  were  as  follows: 


208  TITLE  TO  TERRITORY 

"  Ai.  China  consents  to  all  the  arrangements  that  may  be  made 
in  the  treaty  of  peace  between  Japan  and  Germany  concerning  the 
disposal  of  the  rights,  advantages,  and  concessions  possessed  by 
the  latter  vis-d-vis  China  in  regard  to  the  Province  of  Shantung 
in  virtue  of  treaty  agreements  or  otherwise." 

"2.  China  shall  not  cede  or  lease  to  any  power  any  portion  of 
the  Province  of  Shantung  or  any  part  of  the  seacoast  thereof  or 
any  island  along  such  coast.  .  .  . 

"Bi.  The  terms  of  the  lease  of  the  Kwantung  Province  — 
Port  Arthur  and  Dairen  —  and  also  of  the  South  Manchurian  and 
Antung-Mukden  Railways,  are  extended  to  ninety-nine  years 
from  the  dates  of  original  agreements  respectively.  .  .  ."  (Lon- 
don Times,  May  n,  1915.) 

(Parliamentary  Papers  [1898,  1899],  sub  China,  passim;  Treaties 
between  China  and  Foreign  Powers;  Traites  et  Conventions  entre 
I 'Empire  du  Japon  et  les  Puissances  Etrangeres.) 


§22.  TITLE  TO  TERRITORY 


THE  FALKLAND  ISLANDS   (1829) 

IN  the  year  1810  a  revolution  broke  out  in  the  Spanish  Vice- 
royalty  of  Rio  de  la  Plata,  which,  in  the  course  of  a  few  years,  re- 
sulted in  its  complete  severance  from  Spain.  Ultimately,  its  vast 
territory  became  the  seat  of  several  independent  states,  successors 
to  the  Spanish  sovereignty,  among  them  the  Argentine  Republic. 
When,  however,  the  Government  of  Buenos  Ayres  (that  is,  the 
Argentine  Republic),  in  pursuance  of  what  it  conceived  to  be  the 
principles  of  state  succession,  proceeded  to  provide  for  the  ad- 
ministration of  the  Falkland  Islands,  it  was  met  by  protest  from 
Great  Britain  on  the  ground  of  prior  claim  to  ownership.  A  little 
later,  also,  the  United  States  refused  to  recognize  Argentine  juris- 
diction over  the  Falklands,  more  especially  over  the  rights  of 
fishery  upon  their  coasts.  The  controversy  raised  at  the  time  has 
never  been  settled  by  arbitral  or  diplomatic  means,  though  the 
practical  effect  has  been  the  possession  and  occupation  of  the 
Falklands  by  Great  Britain  for  eighty-five  years. 


THE  FALKLAND  ISLANDS  209 

It  was  on  June  10,  1829,  that  the  Government  of  Buenos  Ayres 
issued  a  decree,  asserting  sovereignty  over  the  islands,  as  follows: 

"When  by  the  glorious  revolution  of  the  25th  of  May,  1810, 
these  provinces  separated  themselves  from  the  dominion  of  the 
mother  country,  Spain  held  the  important  possession  of  the  Islands 
of  the  Malvinas  (Falkland  Islands),  and  of  all  the  others  which 
approximate  to  Cape  Horn,  including  that  known  under  the 
denomination  of  Tierra  del  Fuego;  this  possession  was  justified  by 
the  right  of  being  the  first  occupant,  by  the  consent  of  the  principal 
maritime  powers  of  Europe,  and  by  the  proximity  of  these  islands 
to  the  continent  which  formed  the  Viceroyalty  of  Buenos  Ayres, 
unto  which  government  they  depended.  For  this  reason,  the 
Government  of  the  Republic,  having  succeeded  to  every  right 
which  the  mother  country  previously  exercised  over  these  prov- 
inces, and  which  its  viceroys  possessed,  continued  to  exercise  acts 
of  dominion  in  the  said  islands,  its  ports,  and  coasts,  notwith- 
standing circumstances  have  hitherto  prevented  this  Republic 
from  paying  the  attention  to  that  part  of  the  territory  which, 
from  its  importance,  it  demands.  Nevertheless,  the  necessity  of 
no  longer  delaying  such  precautionary  measures  as  shall  be  neces- 
sary to  secure  the  rights  of  the  Republic;  and  at  the  same  time  to 
possess  the  advantages  which  the  productions  of  the  said  islands 
may  yield,  and  to  afford  to  the  inhabitants  that  protection  of 
which  they  stand  in  need,  and  to  which  they  are  entitled;  the 
government  has  ordered  and  decreed,  as  follows: 

"Art.  i.  The  Islands  of  the  Malvinas,  and  those  adjacent  t6 
Cape  Horn  in  the  Atlantic  Ocean,  shall  be  under  the  command 
of  a  political  and  military  governor,  to  be  named  immediately  by 
the  Government  of  the  Republic. 

"Art.  2.  The  political  and  military  governor  shall  reside  in  the 
Island  de  la  Soledad,  on  which  a  battery  shall  be  erected  under 
the  flag  of  the  Republic. 

"Art  3.  The  political  and  military  governor  shall  cause  the 
laws  of  the  Republic  to  be  observed  by  the  inhabitants  of  the 
said  islands,  and  provide  for  the  due  performance  of  the  regula- 
tions respecting  seal  fishery  on  the  coasts. 

"Art.  4.  Let  this  be  made  public.  RODRIGUEZ." 

(British  and  Foreign  Stale  Papers,  vol.  xx,  pp.  314-15.) 


210  TITLE  TO  TERRITORY 

As  soon  as  this  decree  had  been  communicated  to  the  British 
Government,  it  instructed  its  charge  d'affaires  at  Buenos  Ayres  to 
enter  protest,  which  he  did  in  the  following  note  of  November  19, 
1829: 

"...  The  undersigned  has  received  the  order  of  his  court  to 
represent  to  His  Excellency  that  the  Argentine  Republic,  in  issu- 
ing this  decree,  have  assumed  an  authority  incompatible  with 
His  Britannic  Majesty's  rights  of  sovereignty  over  the  Falkland 
Islands. 

"These  rights,  founded  upon  the  original  discovery  and  sub- 
sequent occupation  of  the  said  islands,  acquired  an  additional 
sanction  from  the  restoration,  by  His  Catholic  Majesty,  of  the 
British  settlement,  in  the  year  1771,  which,  in  the  preceding  year, 
had  been  attacked  and  occupied  by  a  Spanish  force,  and  which  act 
of  violence  had  led  to  much  angry  discussion  between  the  Govern- 
ments of  the  two  countries. 

"The  withdrawal  of  His  Majesty's  forces  from  these  islands,  in 
the  year  1774,  cannot  be  considered  as  invalidating  His  Majesty's 
just  rights.  That  measure  took  place  in  pursuance  of  a  system 
of  retrenchment,  adopted  at  that  time  by  His  Britannic  Majesty's 
Government;  but  the  marks  and  signals  of  possession  and  property 
were  left  upon  the  islands:  when  the  governor  took  his  departure, 
the  British  flag  remained  flying,  and  all  those  formalities  were  ob- 
served which  indicated  the  rights  of  ownership,  as  well  as  an  in- 
tention to  resume  the  occupation  of  the  territory,  at  a  more 
convenient  season. 

"The  undersigned,  therefore,  in  execution  of  the  instructions 
of  his  court,  formally  protests,  in  the  name  of  His  Britannic  Maj- 
esty, against  the  pretensions  set  up  by  the  Government  of  Buenos 
Ayres,  in  then-  decree  of  the  zoth  of  June,  and  against  all  acts 
which  have  been,  or  may  hereafter  be  done,  to  the  prejudice  of 
the  just  rights  of  sovereignty  which  have  heretofore  been  exer- 
cised by  the  Crown  of  Great  Britain. 

"The  undersigned,  etc. 

"WOODBINE  PARISH." 

(British  and  Foreign  State  Papers,  vol.  xx,  pp.  346-47.) 

Even  before  the  decree  of  June  10,  1829,  the  Government  of 
Buenos  Ayres  had  made  grants  of  land  and  of  exclusive  fishing 


THE  FALKLAND  ISLANDS  21 1 

rights  in  the  Falklands  to  one,  Lewis  Vernet,  who  was  later 
appointed  governor  of  the  islands.  Vernet  having  seized  and 
confiscated  some  American  fishing  vessels  without  process  of  law, 
the  United  States  took  vigorous  measures  to  protect  rights  of 
fishery  enjoyed  for  more  than  half  a  century,  which,  it  maintained, 
could  not  be  withdrawn  without  notice,  "even  supposing  the 
rights  of  the  Buenos  Ayres  Government  to  be  uncontroverted." 
An  American  warship,  the  Lexington,  was  sent  to  the  Falklands, 
which  suppressed  by  force  the  operations  of  Vernet,  but  the 
incident  afterwards  became  the  subject  of  diplomatic  discussion 
between  the  two  governments,  in  the  course  of  which  the  Argen- 
tine title  to  the  Falklands  was  fully  examined  by  the  American 
representative  at  Buenos  Ayres  and  an  opinion  expressed  ad- 
verse to  the  claim  of  the  Government  of  Buenos  Ayres.  (British 
and  Foreign  State  Papers,  vol.  xx,  pp.  338-55.)  The  view  of  the 
Secretary  of  State,  Mr.  Livingston,  was  set  forth  in  a  note  to  the 
American  Charg6  at  Buenos  Ayres,  in  1832,  wherein  he  expressed 
the  belief  that  Patagonia  had  never  been  included  in  the  Province 
of  Buenos  Ayres  proper:  "A  project  was  formed  by  the  Spaniards 
in  1778  of  forming  settlements  there,  but  although  the  settlers 
came'out  to  Monte  Video  the  project  was  abandoned,  and  the  whole 
of  the  continent,  and  islands  of  Terra  del  Fuego  and  Staten  Land 
remain  as  unsettled  and  desert  now  as  they  were  found  at  the  time 
of  their  discovery."  (Moore:  Digest  of  International  Law,  vol.  I, 
p.  888.) 

In  a  discussion  with  Great  Britain,  in  1834,  a  warning,  issued 
by  the  Department  of  State  to  American  fishermen  resorting  to 
the  Falklands  to  respect  British  regulations,  was  silent  about 
sovereignty,  but  "while  it  claimed  no  rights  for  the  United  States, 
it  conceded  none  to  Great  Britain  or  any  other  power."  (Moore: 
Digest  of  International  Law,  vol.  I,  p.  888.) 

While  the  United  States  was  questioning  the  Argentine  title 
to  the  Falklands,  the  Government  of  Great  Britain  proceeded  to 
reoccupy  the  islands.  On  January  2,  1833,  Commander  Onslow, 
of  H.M.S.  Clio,  acting  under  instructions,  addressed  to  the  com- 
mander of  the  Buenos  Ayrean  forces  at  Port  Louis,  in  the  Falk- 
lands, the  following  communication  announcing  the  intended 
occupation : 


212  TITLE  TO  TERRITORY 

"Sir:  I  have  to  acquaint  you  that  I  have  received  direc- 
tions from  His  Excellency  the  Commander-in-Chief  of  His  Brit- 
annic Majesty's  ships  and  vessels  of  war,  on  the  South  American 
station,  to  exercise  the  rights  of  sovereignty  over  these  islands,  hi 
the  name  of  His  Britannic  Majesty. 

"It  is  my  intention  to  hoist,  to-morrow  morning,  the  national 
flag  of  Great  Britain  on  shore;  when  I  request  you  will  be  pleased 
to  haul  down  your  flag,  and  to  withdraw  your  forces,  taking  with 
you  all  the  stores,  etc.,  belonging  to  your  government. 

"I  am,  etc., 

"  J.  J.  ONSLOW,  Commander. 

"H.  E.,  the  Commander  of  the  Buenos  Ayrean  Forces 
at  Port  Louis,  Berkeley  Sound." 

(British  and  Foreign  State  Papers,  vol.  xx,  p.  1197.) 

The  Argentine  commander  protested  against  the  proposed  ac- 
tion, but,  as  his  forces  were  inferior,  he  offered  no  resistance,  an- 
nouncing that  "it  was  his  intention  to  depart,  but  that  he  would 
not  strike  the  flag  on  shore."  Accordingly,  "at  nine  o'clock  in 
the  morning  of  the  3d,  three  boats  manned  with  seamen  and 
marines  from  the  English  sloop,  landed  at  the  point  of  Port  Louis, 
and,  placing  a  flagstaff  at  the  house  of  an  Englishman,  about  four 
squares  distant  from  the  commandancy,  they  hoisted  thereon 
the  British  flag,  and  then  proceeded  to  strike  that  of  the  Republic, 
which  was  still  flying  on  shore,  and  which  was  immediately  de- 
livered up  to  the  Sarandi  by  an  officer  sent  for  that  purpose." 
(British  and  Foreign  State  Papers,  vol.  xx,  p.  1196.) 

As  soon  as  the  news  of  the  occupation  reached  Buenos  Ayres, 
the  government  made  formal  protest  in  a  note  addressed  to  the 
British  Charge,  January  22,  1833.  (British  and  Foreign  State 
Papers,  vol.  xx,  pp.  1198-99.)  On  April  24,  its  minister  at  Lon- 
don, M.  Moreno,  asked  to  be  informed  whether  the  British  Gov- 
ernment had  really  given  the  order  to  occupy  the  islands,  and  on 
April  27,  Lord  Palmerston,  the  Foreign  Secretary,  replied  that 
the  admiral  on  the  station  had  been  instructed  by  the  govern- 
ment "to  exercise  the  ancient  and  indisputable  rights  of  sover- 
eignty belonging  to  His  Majesty."  Thereupon,  on  June  17, 
M.  Moreno  sent  to  Lord  Palmerston  a  note  in  which  the  rights  of 


THE  FALKLAND  ISLANDS  213 

the  Republic  to  sovereignty  over  the  Falklands  were  fully  set 
forth  and  the  British  claim  contested  on  the  ground  of  antecedent 
Spanish  rights.  Lord  Palmerston  replied  on  January  8,  1834, 
denying  the  claims  of  the  Republic  and  expressing  the  hope  that 
"when  the  true  circumstances  of  the  case  shall  have  been  com- 
municated to  the  knowledge  of  the  Government  of  the  United 
States  of  the  Rio  de  la  Plata,  that  government  will  no  longer  call 
in  question  the  right  of  sovereignty  which  has  been  exercised  by 
His  Majesty  as  undoubtedly  belonging  to  the  Crown  of  Great 
Britain."  (British  and  Foreign  State  Papers,  vol.  xxn,  p.  1394.) 

M.  Moreno  made  further  reply  on  December  29,  1834,  but  after 
that,  the  discussion  was  not  continued.  On  December  31,  1835, 
President  De  Rosas,  in  his  annual  message  to  the  legislature  of 
the  Province  of  Buenos  Ayres,  asserted  that  "the  government  will 
never  desist  from  its  obligation  to  demand  of  the  justice  of  the 
British  Cabinet,  both  an  acknowledgment  of  the  clear  and  un- 
questionable right  of  the  Republic  to  those  Islands  and  adequate 
reparation."  (British  and  Foreign  State  Papers,  vol.  xxm,  p.  193.) 
This  resolve  was  reiterated  in  the  message  of  January  i,  1837,  and 
four  years  later,  M.  Moreno,  in  a  note  to  Lord  Aberdeen,  British 
Foreign  Secretary,  again  expressed  his  government's  "great 
regret  that  it  has  not  hitherto  obtained  that  satisfaction  to  which 
it  believes  itself  entitled,  and  which  it  claimed  in  vain  from  the 
preceding  administration."  (British  and  Foreign  State  Papers, 
vol.  xxxi,  p.  1004.) 

The  question  at  issue  involved  the  discussion  of  the  principles 
of  prior  discovery,  formal  possession,  and  effective  occupation  as 
applicable  to  the  rights  of  sovereignty.  There  was  substantial 
agreement  by  all  parties  on  the  following  points  of  historical  fact: 

1520.  Magellan,  sailing  in  the  service  of  Spain,  enters  the 
strait  which  has  since  borne  his  name. 

1527.  The  voyage  of  Loaisa  in  the  same  region. 

1578.  Sir  Francis  Drake  discovers  Cape  Horn  and  "a  cluster 
of  islands." 

1592.  Davies  said  to  have  discovered  the  Falklands  on  his 
voyage  to  the  South  Seas. 

1594.  Hawkins  sees  the  islands,  giving  them  the  name  of 
Hawkins*  Maiden-land. 


214  TITLE  TO  TERRITORY 

1598.  The  islands  visited  by  a  Dutch  squadron  and  named  the 
Sabald  Islands. 

1616.  Le  Maire,  in  the  Dutch  service,  doubles  the  Horn  and 
gives  it  its  name. 

1689.  Captain  Strong,  an  English  navigator,  gives  the  islands 
the  name  of  Falkland. 

1700-1708.  French  navigators  from  St.  Malo  visit  the  islands 
and  give  them  the  name  of  Malouines,  from  which  the  Spanish 
name  Malvinas  is  derived. 

1764,  February  3.  The  French,  under  M.  de  Bougainville, 
establish  at  Port  Louis  the  first  settlement  on  the  Malouines. 
Spam,  regarding  this  as  a  usurpation,  asserts  her  title  to  them  as  a 
dependency  of  the  continent  of  South  America.  France  does  not 
contest  the  Spanish  claim. 

1764,  June  17.    Commodore  Byron  instructed  by  the  British 
Government  to  make  a  survey  of  the  islands. 

1765,  January  23.   Commodore  Byron  takes  formal  possession 
for  Great  Britain,  under  the  name  of  Falkland  Islands. 

1766,  January  8.    Captain  MacBride  arrives  at  Port  Egmont 
with  a  British  military  force  and  stations  a  garrison. 

1766,  October  4.    M.  de  Bougainville  signs  an  agreement  to 
evacuate  the  islands  on  receiving  compensation  from  Spam. 

1767,  March  27.    Formal  delivery  of  the  French  colony  to 
Puente,  the  Spanish  governor. 

1770,  June  10.  A  Spanish  force  under  Admiral  Madariaga  dis- 
possesses the  British  at  Port  Egmont. 

1771,  January  22.  Spanish  declaration  restoring  the  Falklands 
to  Great  Britain,  without  affecting  the  "question  of   anterior 
right  of  sovereignty."    British  counter-declaration  of  same  date 
is  silent  about  any  such  right. 

1771,  September  16.  Possession  of  Port  Egmont  formally  re- 
stored to  Great  Britain. 

1774,  May  22.  Great  Britain  withdraws  her  forces  from  Port 
Egmont,  leaving  "the  marks  and  signals  of  possession"  and  the 
British  flag  still  flying. 

1790,  October  28.  Treaty  of  San  Lorenzo  between  Spain  and 
Great  Britain.  Neither  party  to  form  settlements  south  of 
coasts  and  islands  then  occupied  by  Spain.  British  subjects 


THE  FALKLAND  ISLANDS  215 

not  to  fish  in  South  Seas  within  ten  leagues  of  any  part  of 
said  coasts. 

1810,  May  25.  Revolution  in  the  United  Provinces  of  Rio  de 
la  Plata. 

1820,  November  6.  Colonel  Daniel  Jewett  takes  formal  posses- 
sion of  the  islands  in  the  name  of  "the  Supreme  Government  of 
The  United  Provinces  of  South  America." 

Based  upon  these  data,  the  British  claim  may  be  thus  summa- 
rized: 

1.  Prior  discovery.  At  least,  in  the  absence  of  certainty,  it  was 
contended,  the  British  claim  on  this  ground  was  as  probable 
as  the  Spanish. 

2.  Formal  possession  by  Commodore  Byron  in  1765.    While  ad- 
mitting that  the  French  had  taken  prior  possession  (in  1764), 
Great  Britain  contended  that  France  by  her  retirement  had 
confessed  her  lack  of  title  and  hence  could  transfer  no  rights 
to  Spain.    "If,"  as  the  American  Charge  at  Buenos  Ayres 
expressed  it  in  his  note  of  July  10,  1832,  "the  doctrine  as- 
sumed by  Spain  was  correct,  that  France  had  not  even  a 
colorable  title,  the  cession  was  a  nullity;  and  it  is  a  fact  that 
Spain  so  regarded  it,  and  relied  on  her  prior  rights  alone,  in 
her  subsequent  controversy  with  Great  Britain."    (British 
and  Foreign  Stale  Papers,  vol.  xx,  p.  345.) 

3.  Actual  occupation  in  1766. 

4.  The  disavowal  by  Spain  in  1771  of  the  dispossession  of  the 
British  colony  the  year  before  and  the  subsequent  restora- 
tion to  Great  Britain  without  "any  secret  understanding" 
that  Great  Britain  "was  pledged  to  restore  the  islands  to 
Spain  at  a  subsequent  period." 

5.  The  formalities  observed  on  the  evacuation  in  1774,  "cal- 
culated not  only  to  assert  the  rights  of  ownership,  but  to 
indicate  the  intention  of  resuming  the  occupation  of  the 
territory  at  some  future  period." 

Consequently,  said  Lord  Palmerston,  in  his  note  of  January  8, 
1834,  "the  Government  of  the  United  Provinces  could  not  reason- 
ably have  anticipated  that  the  British  Government  would  permit 
any  other  state  to  exercise  a  right,  as  derived  from  Spain,  which 


2l6  TITLE  TO  TERRITORY 

Great  Britain  had  denied  to  Spain  herself;  and  this  consideration 
alone  would  fully  justify  His  Majesty's  Government  in  declining 
to  enter  into  any  further  explanation  upon  a  question  which, 
upwards  of  half  a  century  ago,  was  so  notoriously  and  decisively 
adjusted  with  another  government  more  immediately  concerned." 
(British  and  Foreign  State  Papers,  vol.  xxn,  p.  1386.) 

The  Spanish  claims,  upon  which  those  of  the  Argentine  Republic 
depend,  were  based  upon  similar  principles,  as  follows: 

1.  Prior  discovery  —  attributed  by  M.  de  Bougainville  to  Ves- 
pucius  and  by  the  British  Naval  Chronicle  of  1809  to  Magel- 
lan.   (Note  of  M.  Moreno  in  British  and  Foreign  State  Papers, 
vol.  xxn,  pp.  1370-71.) 

2.  Possession  effectively  asserted,  when  on  protest  from  Spam 
Great  Britain  in  1754  renounced  an  intention  on  the  part  of 
the  Admiralty  under  Lord  Anson  to  establish  a  port  of  call 
in  the  Falklands. 

3.  The  geographical  position  of  the  archipelago,  as  a  depend- 
ency of  the  continental  territory  of  Spanish  America.    This 
was  urged  successfully  against  France  in  1764-67. 

4.  Prior  occupation,  the  rights  based  upon  which  were  derived 
from  France  in  1767,  when  the  French  establishment  was 
formally  handed  over  to  Spain,  all  French  rights  having  been 
extinguished  by  treaty  and  the  payment  of  indemnity. 

5.  Reservation  of  the  rights  of  sovereignty  by  Spain  in  1771, 
and  the  subsequent  exercise  of  acts  of  sovereignty  by  her 
after  the  abandonment  of  the  islands  by  the  British  in  1774 
—  such  acts  as  the  nomination  of  governors,  the  maintenance 
of  garrisons,  and  -the  exclusion  of  foreign  vessels  from  the 
fisheries. 

6.  The  implied  recognition  by  Great  Britain  in  the  Treaty  of 
1790  of  exclusive  Spanish  possession  of  the  islands. 

The  Argentine  Republic,  as  successor  to  the  state  rights  of 
Spain,  has  asserted  in  support  of  its  claims: 

1.  The  acquisition  by  treaty  of  all  Spanish  rights. 

2.  Possession  begun  and  exercised. 


THE  FALKLAND  ISLANDS  217 

3.  Recognition,  tacit  and  explicit,  by  other  states. 

4.  Prescription,  "resulting  from  a  possession  uncontested  and 
uninterrupted  for  fifty-nine  consecutive  years"  (1774-1833). 

"Accordingly,"  says  Calvo,  himself  the  Argentine  Minister  at 
Paris,  writing  in  1896,  "  the  Argentine  Republic  maintains  and  will 
maintain  over  the  islands  in  question,  as  long  as  the  usurpation 
of  its  sovereign  domain  by  the  English  Government  continues, 
the  absolute  right  of  ownership  which  it  holds  impliedly  from 
Spain,  which  was  formally  recognized  in  1820,  and  the  exercise 
of  which  would  never  have  been  interrupted  save  for  the  abuse  of 
force  on  the  part  of  Great  Britain."  (Calvo:  Droit  International 
[Paris,  1896],  vol.  i,  pp.  423-24-) 

As  far  as  can  be  ascertained  there  has  been  no  more  recent 
pronouncement  upon  the  controversy. 

(British  and  Foreign  State  Papers,  vol.  xx,  pp.  311-441,  1194- 
99;  vol.  xxn,  pp.  1366-94;  vol.  xxxi,  pp.  1003-05;  Calvo:  Droit 
International,  vol.  i,  p.  417-24;  Moore:  Digest  of  International 
Law,  pp.  876-90.) 


CHAPTER  V 

THE  RESTRICTIONS  WHICH  INTERNATIONAL  LAW 
PLACES  UPON  THE  EXERCISE  OF  JURISDICTION 
BY  THE  STATE  WITHIN  THE  NATIONAL  BOUND- 
ARIES 


§  23.  PHYSICAL  LIMITS  WITHIN  WHICH  A  STATE  IS  RECOG- 
NIZED   AS    SOVEREIGN    AND    RESPONSIBLE    FOR    THE 
L  ENFORCEMENT  OF  INTERNATIONAL  LAW 


THE  FUR  SEAL  ARBITRATION 

Special  Arbitral  Tribunal  at  Paris,  1893 

IN  1867,  when  the  United  States  purchased  Alaska,  it  acquired 
"all  the  territory  and  dominion"  which  the  Emperor  of  Russia 
possessed  "on  the  continent  of  America  and  in  the  adjacent 
islands."  By  the  treaty  the  western  boundary  of  the  cession  was 
denned  as  a  line  drawn  through  Behring  Strait  and  southwesterly 
through  Behring  Sea  "so  as  to  include  in  the  territory  conveyed 
the  whole  of  the  Aleutian  Islands."  On  reference  to  the  map  it 
will  be  seen  that  the  major  portion  of  Behring  Sea  lies  to  the  east 
of  this  line,  but  whether  or  not  the  "dominion"  conveyed  im- 
plied jurisdiction  over  Behring  Sea  was  in  no  way  indicated  in  the 
treaty. 

By  an  imperial  ukase  in  1821,  Russia  had  reserved  exclusively 
for  Russian  subjects  the  rights  of  commerce  and  fishing  on  the 
northwest  coast  of  America  down  to  51°  north  latitude,  and  had 
asserted  jurisdiction  over  Behring  Sea  to  the  distance  of  one 
hundred  Italian  miles  from  her  coasts.  This  ukase  was  promptly 
protested  by  the  United  States  and  Great  Britain,  both  of  whom 
had  territorial  claims  north  of  51°.  As  a  result  of  their  protests, 
Russia  receded  from  her  extreme  position  and,  by  treaties  in  1824 
and  1825  with  the  United  States  and  Great  Britain  respectively, 


THE  FUR  SEAL  ARBITRATION  219 

recognized  that  "her  jurisdiction  in  said  sea  should  be  restricted 
to  the  reach  of  cannon  shot  from  shore." 

Soon  after  the  cession  of  Alaska,  the  United  States  enacted 
legislation  with  a  view  to  the  protection  of  the  fur  seal  and  the 
regulation  of  the  sealing  industry.  The  islands  of  St.  Paul  and 
St.  George  in  the  Pribilof  group,  whither  the  seals  resort  during 
the  breeding  season,  were  set  aside  as  "a  special  reservation  for 
government  purposes,"  and  the  right  to  take  the  seals  on  these 
islands  was  given  to  a  company,  under  a  strict  lease  Limiting  the 
number  of  seals  to  be  taken  per  annum,  and  making  it  "unlawful 
to  kill  any  fur  seal  upon  the  islands  of  St.  Paul  and  St.  George  and 
in  the  waters  adjacent  thereto  except  during  the  months  of  June, 
July,  September,  and  October."  Just  what  extent  of  maritime 
jurisdiction  was  implied  by  "waters  adjacent"  was  not  specified. 
Opinion  on  the  point,  as  expressed  in  Congress  and  by  government 
officials,  was  not  uniform,  but  in  1881  the  Acting  Secretary  of  the 
Treasury,  in  answer  to  an  inquiry,  stated  that  "all  the  waters 
within  that  boundary  [the  western  boundary  of  the  Alaskan 
cession]  to  the  western  end  of  the  Aleutian  Archipelago  and  chain 
of  islands  are  considered  as  comprised  within  the  waters  of  Alaska 
Territory." 

In  1886  revenue  officers  of  the  United  States  seized  three  Cana- 
dian schooners  which  they  found  sealing  in  the  Behring  Sea, 
within  waters  over  which  the  United  States  claimed  jurisdiction, 
more  than  sixty  miles  from  the  nearest  land.  The  vessels  were 
taken  to  Sitka  and  condemned  by  the  justice  of  the  District  Court 
at  that  place  for  violation  of  the  sealing  regulations  of  the  United 
States.  Diplomatic  representation  was  at  once  made  by  Great 
Britain  and  the  vessels  were  released;  but  in  1887  other  Canadian 
sealing  schooners  were  seized  and  condemned  by  the  court  at 
Sitka  on  the  ground  that  Behring  Sea  was  mare  clausum  and  that 
the  United  States  alone  had  jurisdiction  over  it.  Negotiations 
were  resumed  and  proposals  made  that  the  powers  interested  take 
joint  action  to  prevent  the  extermination  of  the  industry;  but  the 
negotiations  were  suspended  in  1888,  and  next  year  the  seizures 
were  renewed.  In  the  course  of  the  communications  that  fol- 
lowed, the  United  States  did  not  set  up  the  claim  of  mare  clausum, 
but  justified  the  seizures  on  the  ground  that  the  Canadian  ves- 


220  PHYSICAL  LIMITS  OF  SOVEREIGNTY 

sels,  by  engaging  in  pelagic  sealing,  were  exterminating  the  fur 
seal,  contra  bonos  mores. 

After  further  seizures,  protests,  and  negotiations,  a  treaty  was 
finally  concluded  between  the  two  powers  on  February  29,  1892, 
whereby  the  questions  that  had  arisen  were  to  be  submitted  to  a 
tribunal  of  seven  arbitrators,  two  to  be  named  by  the  President 
of  the  United  States,  two  by  Her  Britannic  Majesty,  and  one 
each  by  the  President  of  France,  the  King  of  Italy,  and  the  King 
of  Sweden  and  Norway.  Article  6  of  the  treaty  specified  five  points 
upon  which  the  decision  of  the  tribunal  was  sought,  as  follows: 

"i.  What  exclusive  jurisdiction  in  the  sea  now  known  as 
the  Behring's  Sea,  and  what  exclusive  rights  in  the  seal 
fisheries  therein,  did  Russia  assert  and  exercise  prior  and 
up  to  the  time  of  the  cession  of  Alaska  to  the  United 
States? 

"2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal 
fisheries  recognized  and  conceded  by  Great  Britain? 

"3.  Was  the  body  of  water  now  known  as  the  Behring's  Sea 
included  in  the  phrase  'Pacific  Ocean*  as  used  in  the 
Treaty  of  1825  between  Great  Britain  and  Russia;  and 
what  rights,  if  any,  in  the  Behring's  Sea  were  held  and 
exclusively  exercised  by  Russia  after  said  treaty? 

"4.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction,  and  as 
to  the  seal  fisheries  in  Behring's  Sea  east  of  the  water 
boundary,  in  the  treaty  between  the  United  States  and 
Russia  of  the  3oth  March,  1867,  pass  unimpaired  to  the 
United  States  under  that  treaty? 

"5.  Has  the  United  States  any  right,  and  if  so,  what  right  of 
protection  or  property  in  the  fur  seals  frequenting  the 
islands  of  the  United  States  in  Behring's  Sea,  when  such 
seals  are  found  outside  the  ordinary  three-mile  limit?" 

It  was  further  provided,  by  article  7,  that,  if  the  decision  on 
these  points  should  be  against  the  contentions  of  the  United  States, 
the  arbitrators  should  determine  "what  concurrent  regulations 
outside  the  jurisdictional  limits  of  the  respective  governments  are 
necessary,  and  over  what  waters  such  regulations  should  extend." 

The  tribunal,  constituted  in  accordance  with  the  treaty,  held 


THE  FUR  SEAL  ARBITRATION  221 

its  first  session  in  Paris  on  February  23,  1893.  The  American 
arbitrators  were  Mr.  Justice  Harlan,  of  the  Supreme  Court  of  the 
United  States,  and  Senator  Morgan.  Representing  Great  Britain 
on  the  tribunal  were  Lord  Hannen,  of  the  High  Court  of  Appeal, 
and  Sir  John  Thompson,  Minister  of  Justice  for  Canada.  The 
three  neutral  members  were  Baron  de  Courcel,  chosen  by  the 
President  of  France,  Marquis  Venosta,  by  the  King  of  Italy,  and 
M.  Gregers  Gram,  by  the  King  of  Sweden  and  Norway.  Baron 
de  Courcel  was  chosen  president. 

The  United  States,  in  its  case,  counter-case,  and  arguments, 
did  not  press  the  claim  that  Behring  Sea  was  mare  clausum,  but 
maintained  that,  both  in  international  law  and  by  treaty  with 
Russia,  it  had  acquired  a  property  in  the  fur  seal,  and,  corollary 
to  that,  a  right  to  protect  it  by  "the  practical  prohibition  of 
pelagic  sealing  in  all  the  waters  to  which  it  resorts." 

The  situation,  it  was  admitted,  was  a  new  one,  but  the  principle 
involved  was  fundamental.  International  law  was  merely  the 
international  standard  of  justice  and  advanced  by  analogy.  It 
was  necessary  that  the  decision  of  the  tribunal  be  based  upon  the 
principle  of  right,  for,  in  addition  to  usage  and  practice,  "nations 
presumed  to  agree  upon  what  natural  and  universal  justice  dic- 
tates." There  was  a  distinction  between  exercising  jurisdiction 
on  the  high  seas  and  protecting  one's  property  thereon.  The 
Alaskan  fur  seal,  being  by  nature  a  land  animal,  had  its  permanent 
home  on  the  Pribilof  Islands  and  was  thus  to  be  considered  a 
natural  product  of  the  soil.  It  exhibited  all  the  essentials  of  prop- 
erty: it  submitted  to  the  dominion  of  man,  could  be  "husbanded" 
by  him,  and,  though  migrating  seawards  at  stated  seasons,  always 
manifested  the  animus  revertendi.  The  very  existence  of  the 
Alaskan  herd  was  due  to  the  protection  afforded  it  by  Russia  and 
the  United  States,  and  it  was  in  order  to  extend  such  protection 
that  Russia  had  issued  her  ukase  of  1821.  The  objection  to  the 
ukase  on  the  part  of  the  United  States  had  been  made  not  against 
the  right  to  protect  Russian  industries,  but  against  unfounded 
territorial  claims.  The  property  was  in  the  herd,  rather  than  in 
the  individual  seals,  and  with  the  property  right  went  a  moral,  and, 
in  the  view  of  the  United  States,  a  legal,  right  to  protect  this 
property  wherever  found. 


222  PHYSICAL  LIMITS  OF  SOVEREIGNTY 

But  even  if  the  seals  themselves  could  not  be  protected  by  the 
United  States,  there  remained  the  sealing  industry  on  the  islands. 
Might  it  be  destroyed  with  impunity  by  pelagic  sealing?  The 
right  of  self-defense  implies  the  right  to  protect  industry,  even  on 
the  high  seas.  The  Ceylon  pearl-fishery  was  a  case  in  point, 
where  such  protection  was  exercised  beyond  the  usual  limits  of 
jurisdiction,  and  further  instances  might  be  found  in  the  revenue 
laws  of  both  Great  Britain  and  the  United  States. 

Finally,  over  and  above  all  technical  arguments,  it  was  urged 
that  the  United  States  held  the  seal  industry  in  trust  for  the 
benefit  of  mankind,  and  that  it  was  justified,  in  the  contemplation 
of  the  law  of  nations,  in  taking  all  measures  to  prevent  the  exter- 
mination of  the  industry,  even  to  the  extent  of  seizing  foreign 
sealing  vessels  upon  the  high  seas. 

In  reply  to  these  arguments,  Great  Britain  maintained  that 
international  law,  so  far  from  having  the  comprehensive  ethical 
basis  contended  for  by  the  United  States,  comprised  "only  so 
much  of  the  principle  of  morality  and  justice  as  the  nations  have 
agreed  shall  be  part  of  those  rules  of  conduct  which  shall  govern 
their  relations  with  one  another."  The  test  was  the  consent  of 
nations  —  placuitne  gentibus?  An  ocean  fishery  was  a  natural 
right  and  open  to  all,  unless  restricted  by  international  agreement. 
Property  in  seals  was  without  precedent,  and  protection  in  any 
case  was  limited  to  territorial  waters.  In  all  the  instances  cited 
by  the  United  States  where  such  protection  had  been  exercised 
outside  the  ordinary  limits,  there  was  no  attempt  at  extrater- 
ritorial jurisdiction  over  foreigners.  The  contention  that  Russia 
had  exercised  such  jurisdiction  was  not  borne  out  by  the 
facts.  The  ukase  of  1821  had  been  protested  by  both  the 
United  States  and  Great  Britain,  and  down  to  1867  Russia  had 
exercised  in  Behring  Sea  only  her  strict  rights  according  to  in- 
ternational law.  The  western  line  in  the  treaty  of  cession  had 
been  drawn  to  divide  the  islands,  not  to  transfer  jurisdiction 
which  did  not  exist.  After  1867  the  United  States  had  legis- 
lated to  protect  the  seals  when  on  the  islands  only,  not  when 
found  on  the  high  seas. 

As  to  the  contention  that  the  Alaskan  seals  presented  all  the 
essentials  of  property,  Great  Britain  argued  that  seals  were  fera 


THE  FUR  SEAL  ARBITRATION  223 

naturcB  (wild  creatures)  and  hence  res  nullius  (the  property  of  no 
one).  So  far  from  being  a  land  animal,  the  seal  spent  most  of  its 
time  in  the  open  sea;  it  got  its  food  there,  and  went  north  to  the 
islands  merely  for  breeding  purposes.  While  on  the  islands  it 
could  be  said  to  be  controllable  by  man,  only  because  it  was  help- 
less. Nor  could  he  be  said  to  "husband"  them  except  in  a 
negative  way  by  refraining  from  killing  all.  He  did  nothing  to 
improve  the  breed  or  change  their  habits;  and  as  to  the  animus 
revertendi,  this  doctrine,  as  establishing  a  property  right,  applied 
only  to  brief  intervals  of  time,  not  to  the  movements  of  migratory 
animals.  "The  fur  seal  might  as  truly  be  said  to  have  an  animus 
revertendi  to  the  ocean  as  an  animus  revertendi  to  the  Pribilof 
Islands."  Furthermore,  to  claim  property  in  the  seal  herd,  but 
none  in  the  individual  seals,  was  to  beg  the  entire  question  of 
property  rights.  "The  whole  was  made  up  of  parts,  and  if  there 
was  no  property  in  the  parts,  how  could  there  be  in  the  whole?" 
The  United  States  could  not  maintain,  for  example,  an  action  of 
trespass  for  the  capture  of  an  individual  seal,  and  such  an  action 
was  an  ultimate  test  of  a  property  right. 

The  argument  that  the  property  in  the  industry,  as  carried  on 
in  the  islands,  implied  a  right  to  protection  in  the  Behring  Sea, 
was  likewise  considered  by  Great  Britain  to  be  without  ground  in 
international  law.  Sealing  on  the  high  seas  was  lawful;  indeed, 
the  earliest  form  of  the  industry  was  pelagic.  True,  it  might 
compete  with  the  land  industry  to  the  disadvantage  of  the  latter, 
but  competition  was  an  economic  necessity  that  conditioned  all 
industry.  Acts  of  self-defense  were,  in  the  main,  belligerent  rights 
exercised  in  the  face  of  exceptional  emergencies.  The  historical 
attitude  of  the  United  States  toward  the  principle  of  visit  and 
search  made  for  the  support  of  the  British  contention  hi  the  pres- 
ent instance;  nor  were  revenue  laws,  enforced  beyond  the  ac- 
cepted limits  of  maritime  jurisdiction,  any  exception  to  the  general 
principle,  for  they  were  always  directed  against  an  offense  con- 
templated within  municipal  jurisdiction. 

On  the  conclusion  of  the  oral  arguments,  the  tribunal  deliber- 
ated behind  closed  doors  upon  the  questions  submitted.  Agree- 
ment was  finally  reached  on  August  15,  1893,  an^  tne  award 
signed  by  all  seven  arbitrators.  In  addition,  they  signed  three 


224  PHYSICAL  LIMITS  OF  SOVEREIGNTY 

declarations  which  "were  referred  to  the  Governments  of  the 
United  States  and  Great  Britain  for  their  consideration." 

Summarized,  the  award  was  as  follows: 

On  the  first  three  points  submitted  —  those  concerning  Rus- 
sian jurisdiction  —  the  tribunal  decided  that,  from  the  time  of  the 
Russian  treaties  with  the  United  States  and  Great  Britain  down 
to  the  time  of  the  cession  of  Alaska,  "Russia  never  asserted  in 
fact  or  exercised  any  exclusive  jurisdiction  hi  Behring's  Sea  or 
any  exclusive  rights  in  the  seal  fisheries  therein  beyond  the  ordi- 
nary limits  of  territorial  waters;"  that  Great  Britain  had  obvi- 
ously never  conceded  such  claim;  and  that  the  phrase  "Pacific 
Ocean"  as  used  in  the  Treaty  of  1825  included  the  Behring  Sea. 
On  all  three  points  Justice  Harlan  voted  with  the  majority, 
Senator  Morgan  dissenting. 

On  the  fourth  point  the  tribunal  was  unanimous  in  its  decision 
that  the  United  States  had  succeeded  to  all  the  rights  of  Russia 
"as  to  jurisdiction  and  as  to  the  seal  fisheries  in  the  Behring  Sea 
east  of  the  water  boundary." 

On  the  fifth  point  —  the  important  one  of  property  rights  —  a 
majority  of  the  arbitrators  decided  "that  the  United  States  had 
not  any  right  of  protection  or  property  in  the  fur  seals  frequenting 
the  islands  of  the  United  States  in  Behring  Sea,  when  such  seals 
are  found  outside  the  ordinary  three-mile  limit."  From  this  part 
of  the  award  both  American  arbitrators  dissented. 

The  decision  having  been  against  the  claims  of  the  United 
States,  it  was  incumbent  upon  the  tribunal,  in  accordance  with 
article  7  of  the  treaty  of  arbitration,  to  agree  upon  regulations 
necessary  for  the  protection  and  preservation  of  the  seals  in 
Behring  Sea.  This  they  did  in  nine  articles  which  dealt  specifically 
with  the  time,  place,  and  manner  of  sealing  "outside  the  juris- 
dictional  limits  of  the  respective  governments."  No  seals  were  to 
be  taken  within  sixty  miles  of  the  Pribilof  Islands.  There  was  to 
be  a  dosed  season  each  year  from  May  i  to  July  31  in  the  part 
of  the  Pacific  Ocean  east  of  180°  longitude  and  north  of  35°  lati- 
tude as  far  as  Behring  Strait.  Only  sailing  vessels  could  engage 
in  sealing  operations,  for  which  special  licenses  were  required. 
There  was  to  be  supervision  of  those  engaged  in  the  industry,  but 
Indians  were  to  be  exempt  from  the  scope  of  the  regulations  when 


THE  SCHNAEBELE  INCIDENT  225 

fishing  for  themselves.  The  use  of  nets,  firearms,  and  explosives 
was  prohibited.  Lastly,  the  regulations  were  to  remain  in  force 
"until  they  have  been,  in  whole  or  in  part,  abolished  or  modified 
by  common  agreement,"  but  every  five  years  they  were  to  be 
examined  with  a  view  to  necessary  revision. 

The  three  declarations  recommended  to  the  two  powers  (i)  the 
desirability  of  supplementary  regulations  within  their  respective 
jurisdictions;  (2)  a  closed  season  everywhere  for  two  or  three 
years;  and  (3)  the  enactment  of  municipal  measures  to  give  effect 
to  the  regulations  determined  upon  by  the  tribunal. 

It  may  be  added  that,  by  a  convention  between  the  two  govern- 
ments in  1896,  two  commissioners  were  appointed  to  determine 
the  amount  of  damages  due  Great  Britain  by  reason  of  the  seizures. 
After  several  sessions  in  Canada  and  the  United  States  the  sum 
of  $473,151.26  was  agreed  upon  and  duly  paid  by  the  Government 
of  the  United  States  hi  full  settlement  of  all  claims. 

(Proceedings,  15  vols.,  published  by  the  Government  Printing 
Office,  Washington;  Moore:  International  Arbitrations,  vol.  I, 
PP-  755-96i.) 


§24.    IMMUNITIES    OF   THE   AGENTS    OF   INTERNATIONAL 

INTERCOURSE 


THE  SCHNAEBELfi  INCIDENT  (1887) 

THE  somewhat  delicate  relations  between  France  and  Germany 
in  the  early  part  of  1887  were  suddenly  strained  to  the  breaking 
point  by  an  incident  which  occurred  on  the  Alsatian  frontier.  A 
French  police  inspector,  who  crossed  the  frontier  on  April  22  to 
hold  an  interview  with  a  German  official,  was  arrested  in  the  rail- 
way station  at  Pagny  by  two  agents  of  the  German  secret  police. 
The  indignation  in  France  was  dangerously  increased  by  the  report 
of  the  attorney-general  at  Nancy  that  the  arrest  had  been  made 
on  French  territory. 

The  French  Cabinet,  as  it  later  became  known,  voted  6  to  5 
against  an  ultimatum  which  would  almost  certainly  have  meant 
war.  The  President  of  the  Council,  Goblet,  General  Boulanger 


226  IMMUNITIES  OF  INTERNATIONAL  AGENTS 

and  Admiral  Aube,  Lockroy,  and  Granet  were  in  favor  of  sending 
the  ultimatum,  but  President  Grevy  and  the  Minister  of  Foreign 
Affairs,  Flourens,  counseled  patience  and  were  able  to  muster  a 
majority  of  one  vote. 

The  incident  was  terminated  by  the  following  note  which  the 
German  Chancellor,  Count  von  Bismarck,  transmitted  April  28, 
1887,  to  the  French  Ambassador  at  Berlin: 

"In  regard  to  the  arrest  of  the  French  police  commissioner 
Schnaebele,  the  undersigned  has  given  the  matter  a  careful  exami- 
nation in  which  he  has  taken  into  account  the  information  trans- 
mitted to  him  by  His  Excellency  the  Ambassador  of  the  French 
Republic  and  the  communications  of  the  French  Minister  for 
Foreign  Affairs  transmitted  through  the  intermediary  of  the  Ger- 
man Charge  d'Affaires  at  Paris.  The  judicial  authorities  con- 
cerned in  the  affair  have  also  been  called  upon  to  submit  the 
papers  setting  forth  the  grounds  for  M.  Schnaebele's  arrest. 

"A  copy  of  the  more  important  of  these  documents,  and  especi- 
ally the  statement  made  by  Schnaebele  after  his  arrest,  together 
with  the  depositions  of  all  the  witnesses  examined  in  the  affair, 
has  been  given  to  the  Ambassador  of  the  French  Republic.  From 
these  documents  it  is  made  clear  beyond  all  doubt  that  the  arrest 
occurred  entirely  on  German  territory,  and  that  the  French 
frontier  was  not  crossed. 

"The  judicial  proceedings  directed  against  M.  Schnaebele  re- 
lated to  the  crime  of  high-  treason  committed  upon  German  ter- 
ritory, and  were  based  upon  conclusive  evidence  of  his  guilt,  con- 
sisting in  the  confession  of  the  German  subject  Klein  and  in  his 
autograph  letters  mailed  at  Metz,  which  have  since  been  admitted 
by  Schnaebele  as  coming  from  Klein.  In  consideration  of  his  guilt, 
which  Schnaebele  afterwards  confessed  to,  the  court  ordered  his 
arrest  as  soon  as  he  should  set  foot  upon  German  territory.  This 
occurred  on  the  2oth  of  the  present  month,  when  an  opportunity 
was  afforded  by  an  appointment  at  the  frontier  made  by  the 
German  police  commissioner  Gautsch  to  discuss  official  matters 
with  Schnaebele. 

"Under  the  circumstances  Schnaebel6's  conviction  cannot  be 
considered  as  doubtful,  and  is  still  more  sure  to  occur  in  that 
Schnaebele  in  his  reprehensible  activity  took  advantage  of  his 


THE  SCHNAEBELfi  INCIDENT  227 

official  position  which  allowed  him  special  opportunities  because 
of  the  mutual  confidence  which  both  nations  place  in  their  official 
relations  on  the  frontier.  Schnaebele  has  injured  the  indispen- 
sable confidence  necessary  for  international  intercourse  by  the 
manner  in  which  he  has  taken  advantage  of  his  official  position  as 
a  frontier  official  to  induce  German  subjects  to  commit  for  pay 
criminal  offenses  against  the  Fatherland.  This  misuse  of  his 
official  position  increases,  in  the  eyes  of  the  court,  the  gravity  of 
Schnaebele's  offense,  irrespective  of  the  question  whether  he 
acted  at  the  direction  of  his  superiors.  The  undersigned  allows 
himself  to  make  these  observations  in  case,  after  Schnaebele's  re- 
lease, he  should  again  be  found  on  German  soil  without  the  offi- 
cial understanding  previously  referred  to,  to  protect  him  against 
arrest. 

"The  undersigned  hopes  that  the  French  Ambassador  will  be 
convinced  from  his  inspection  of  the  communicated  documents 
that  the  order  issued  by  the  court  for  Schnaebele's  arrest  was  well 
founded,  and  that  its  execution  took  place  within  German  terri- 
tory without  any  violation  of  French  sovereignty.  If,  notwith- 
standing, the  undersigned  considers  it  his  duty  to  request  His 
Gracious  Majesty,  the  Emperor,  to  order  Schnaebele's  release,  it  is 
out  of  respect  to  the  principle  of  international  law  which  regards 
all  crossings  of  the  border,  undertaken  on  the  basis  of  an  under- 
standing between  officials  of  neighboring  states,  as  a  tacit  agree- 
ment of  safe-conduct.  It  is  impossible  to  believe  that  the  German 
official,  Gautsch,  asked  Schnaebele  to  confer  with  him  in  order 
to  facilitate  his  arrest.  There  are  letters,  however,  which  show 
that  Schnaebele's  presence  at  the  place  where  his  arrest  occurred 
was  due  to  an  understanding  made  with  an  official  on  this  side  of 
the  frontier  for  the  purpose  of  transacting  business  of  common 
concern.  If  frontier  officials  engaged  on  such  a  mission  should  be 
subject  to  the  process  of  the  courts  of  the  neighboring  state,  the 
consequence  would  be  to  render  more  difficult  the  handling  of 
those  matters  which  are  incidental  to  the  frontier  relations  be- 
tween states.  Such  a  result  is  not  in  conformity  with  the  spirit 
and  traditions  of  international  relations  at  the  present  time.  The 
undersigned  is  of  the  opinion  that  such  interviews  for  the  trans- 
action of  business  must  always  be  considered  as  covered  by  a 


228  LEGATIONS 

safe-conduct  of  the  two  governments.  In  this  belief  and  with  the 
full  recognition  of  the  perfect  legality  of  the  action  taken  by  the 
German  authorities,  the  undersigned  has  laid  the  matter  before 
His  Majesty  the  Emperor,  who  has  decided,  in  consideration  of 
the  principle  of  international  law  which  requires  absolute  security 
for  international  negotiations,  to  release  Police  Commissioner 
Schnaebele,  notwithstanding  his  arrest  in  German  territory  and 
notwithstanding  the  above-mentioned  proofs  exhibited  against 
him.  The  undersigned  makes  this  known  to  the  Ambassador  of 
the  French  Republic  and  announces  at  the  same  time  that  the 
requisite  order  for  the  release  of  Schnaebele  has  been  expedited, 
and  begs  His  Excellency  to  accept  the  assurance  of  his  highest 
consideration. 

"VoN  BISMARCK." 

(Das  Staatsarchiv,  vol.  48  [1889],  Nos.  9596,  9597;  Schulthess: 
Europaischer  Geschichtskalender  [1887],  pp.  in,  133-34,  328.) 


§25.   LEGATIONS 


THE  NIKITCHENKOFF l  CASE 

Court  of  Cassation,  1863 

THE  reporter  charged  with  presenting  the  case  pointed  out 
that  "the  attempts  at  assassination  for  which  the  appellant  had 
been  condemned  to  imprisonment  for  life  with  hard  labor  had  been 
committed  by  a  Russian  subject  upon  a  Russian  subject  within 
the  interior  of  the  Russian  Embassy  at  Paris."  After  discussing 
the  nature  and  extent  of  the  diplomatic  immunity  and  its  appli- 
cation to  the  present  case,  the  reporter  draws  attention  "to  the 
attitude  in  regard  to  the  affair  taken  by  the  Russian  Embassy, 
which,  he  remarks,  so  well  understood  that  the  principle  to  which 
it  owed  its  protection  was  in  no  wise  concerned  in  this  matter,  that 
appeal  was  made  to  the  intervention  of  the  French  police.  The 
arrest  was  made  as  a  result  of  a  demand  from  the  embassy  itself, 
and  the  trial  continued  with  its  -concurrence  and  silence.  May  it 

1  Dalloz  has  Mikiischenkojf. 


THE  NIKITCHENKOFF  CASE  229 

not  be  asked  whether  from  this  very  circumstance  the  action 
taken  was  not  both  necessary  and  legal?"  The  reporter  then 
alludes  to  the  inapplicability  for  a  foreign  government  to  de- 
mand extradition  in  such  a  case  and  draws  attention  to  the 
care  "with  which  the  Russian  Government  had  abstained  from 
making  a  demand  of  this  nature."1  But,  he  continues,  "even 
had  it  been  made,  the  fact  was  that  the  appellant  had  also  in 
this  case  committed  an  attack  upon  a  Frenchman  engaged  as 
a  porter  at  the  embassy  and  against  an  Italian  who  happened 
there  by  chance  and  who  was  placed  under  the  protection  of 
French  law." 

The  decision  of  the  Court  of  Cassation,  section  of  Criminal 
Affairs,  rendered  October  13,  1865,  was  as  follows: 

"In  regard  to  the  plea  brought  forward  that  the  offense  com- 
plained of  was  committed  by  a  Russian  upon  a  Russian  or  foreign 
subject  in  the  Russian  Embassy  at  Paris,  and  consequently  in  a 
place  outside  of  French  territory,  where  French  law  was  not  ap- 
plicable and  to  which  the  competence  of  our  courts  could  not  ex- 
tend: —  Whereas  according  to  the  terms  of  article  3,  code  Napo- 
leon, the  police  regulations  for  the  public  safety  are  obligatory 
upon  all  those  dwelling  within  their  territory;  —  where'as  it  may 
be  admitted,  as  an  exception  to  this  rule  of  public  law,  that 
international  law  in  certain  instances  affords  a  personal  immunity 

1  Notwithstanding  what  is  said,  it  appears  that  the  Russian  Government  did  de- 
mand extradition.  The  Solicitor's  Journal  (1865-66,  vol.  x,  p.  56)  notes:  "It  will  be 
remembered  that  this  case  gave  rise  to  a  diplomatic  correspondence,  the  Russian 
Government  having  disputed  the  right  of  the  French  courts  to  try  the  murderer,  and 
claimed  a  right  to  have  him  given  up  for  trial  in  Russia."  And  de  Martens,  whose 
statement,  in  spite  of  its  evident  inaccuracy  in  dating  the  occurrence,  may  be  taken 
as  authoritative,  says:  "In  this  connection  the  question  was  raised  as  to  whether  the 
prisoner  should  be  brought  to  trial  before  a  French  or  a  Russian  court.  The  Govern- 
ment of  the  Tsar  maintained  from  the  beginning  that  the  case  was  within  the  juris- 
diction of  the  Russian  courts,  inasmuch  as  the  crime  had  been  committed  in  the 
residence  of  the  ambassador  and  both  victim  and  perpetrator  of  the  violence  were 
Russian  subjects.  But  the  French  Government  replied  that  the  extraterritoriality  of 
the  embassy  afforded  no  protection  to  criminals,  and  that  moreover  the  French  au- 
thorities entrusted  with  conducting  the  preliminary  examination  at  the  request  of 
the  embassy  itself  ought  naturally  to  be  considered  competent  to  carry  the  case 
through  to  the  end.  The  Cabinet  of  St.  Petersburg  yielded  this  point,  reserving  the 
right  to  take  similar  action  in  the  future  with  reference  to  the  French  Embassy  at  St. 
Petersburg."  (Translated  from  F.  de  Martens:  Traill  de  Droit  International  [Paris, 
1886],  vol.  n,  p.  68.)  The  fact  that  the  Russian  Government  yielded  after  contesting 
the  French  view  of  the  fact  gives  of  course  increased  value  to  the  case  as  a  precedent. 


230  ARMED  FORCES  AND  WARSHIPS 

to  foreign  diplomatic  agents  and  that  by  virtue  of  a  legal  fiction 
their  residence  is  looked  upon  as  situated  outside  the  territory 
of  the  sovereign  to  whom  they  are  accredited;  —  But  whereas 
this  legal  fiction  cannot  be  extended,  whereas  it  is  outside  of  the 
common  law,  and  is  confined  strictly  to  ambassadors  or  ministers, 
whose  independence  it  is  designed  to  protect,  and  to  their  subor- 
dinates who  nevertheless  are  invested  with  the  like  public  charac- 
ter;—  Whereas  the  plaintiff  holds  no  office  at  the  Russian  Em- 
bassy, but,  as  a  foreigner  temporarily  resident  in  France,  is 
subject  to  French  laws;  whereas  the  place  where  the  offense  was 
said  to  have  been  committed  can  no  longer  be  held  as  outside  the 
limits  of  the  territory  so  far  as  relates  to  the  plaintiff  personally, 
the  operation  and  competence  of  the  French  judicial  authorities 
being  therefore  beyond  question;  —  Whereas  they  have  acted,  at 
the  express  request  of  the  agents  of  the  Russian  Government, 
after  the  latter  had  turned  the  plaintiff  over  to  be  prosecuted;  — 
Decided  that  on  all  these  counts  the  plea  invoked  is  not  well 
founded.  .  .  ." l 

(Translated   and   condensed   from   Dalloz   [1866],  part   I,  p. 
233/0 


§26.  ARMED  FORCES  AND  WARSHIPS 
I 


THE  SCHOONER  EXCHANGE 

The  Supreme  Court  of  the  United  States,  1812 

AN  armed  vessel  sailing  under  the  flag  of  Napoleon,  Emperor 
of  France,  entered  the  port  of  Philadelphia,  where  shortly  after 
her  arrival  she  was  arrested  upon  a  libel  filed  August  24,  1811, 
against  the  schooner  Exchange,  by  John  M'Faddon,  and  William 
Greetham,  setting  forth  that  they  were  her  owners  on  October  27, 
1809,  when  she  sailed  from  Baltimore  bound  to  St.  Sebastian,  in 
Spain,  and  that  she  had  been  violently  and  forcibly  taken  by 
persons  acting  under  the  decrees  and  orders  of  Napoleon  and  dis- 

1  The  rest  of  the  opinion  deals  with  exceptions  to  the  competence  of  the  court  on 
technical  grounds  relating  to  the  violation  of  the  Code  of  Civil  Procedure.  On  this 
latter  ground  also  the  court  decided  against  the  appeal. 


THE  SCHOONER  EXCHANGE           231 

posed  of  in  violation  of  the  rights  of  the  libelants  and  of  the  law  of 
nations.  No  claim  was  put  in  by  any  person,  but  the  attorney  for 
the  district,  acting  by  order  of  the  executive  department  of  the 
government,  filed  a  suggestion  to  the  effect  that,  a  state  of  peace 
existing  between  the  United  States  and  France,  the  public  vessels 
of  France  may  freely  enter  and  depart  from  the  ports  of  the  United 
States  without  seizure,  arrest,  detention,  or  molestation;  that  'a 
certain  public  vessel  of  France  known  as  the  Balaou,  having 
entered  the  port  of  Philadelphia  for  repairs,  had  not  been  seized 
in  the  manner  described  by  the  libelants,  but  that  even  if  the  said 
public  vessel  ever  had  been  a  vessel  navigating  under  the  flag  of 
the  United  States  and  possessed  by  the  libelants  (which  never- 
theless the  attorney  did  not  admit),  the  property  had  since  been 
divested.  In  consideration  of  these  premises  the  attorney  asked 
the  court  to  quash  the  process  of  attachment,  to  dismiss  the  libel 
with  costs,  and  to  release  the  vessel. 

On  October  4,  1811,  the  district  judge  dismissed  the  libel  with 
costs,  upon  the  ground  that  a  public  armed  vessel  of  a  foreign 
sovereign,  in  amity  with  our  government,  is  not  subject  to  the 
ordinary  judicial  tribunals  of  the  country  so  far  as  regards  the 
question  of  title  by  which  such  sovereign  claims  to  hold  the 
vessel. 

On  appeal  to  the  Circuit  Court  this  sentence  was  reversed, 
October  28,  1811,  and  from  the  sentence  of  reversal  the  district 
attorney  appealed  to  the  Supreme  Court  of  the  United  States. 

Chief  Justice  Marshall  delivered  the  opinion  of  the  Supreme 
Court: 

"This  case  involves  the  very  delicate  and  important  inquiry, 
whether  an  American  citizen  can  assert,  in  an  American  court,  a 
title  to  an  armed  national  vessel,  found  within  the  waters  of  the 
United  States. 

"The  question  has  been  considered  with  an  earnest  solicitude, 
that  the  decision  may  conform  to  those  principles  of  national  and 
municipal  law  by  which  it  ought  to  be  regulated. 

"  In  exploring  an  unbeaten  path,  with  few,  if  any  aids,  from  prec- 
edents or  written  law,  the  court  has  found  it  necessary  to  rely 
much  on  general  principles,  and  on  a  train  of  reasoning,  founded  on 
cases  in  some  degree  analogous  to  this. 


232  ARMED  FORCES  AND  WARSHIPS 

"  The  jurisdiction  of  courts  is  a  branch  of  that  which  is  possessed 
by  the  nation  as  an  independent  sovereign  power. 

"The  jurisdiction  of  the  nation  within  its  own  territory  is 
necessarily  exclusive  and  absolute.  It  is  susceptible  of  no  limita- 
tion not  imposed  by  itself.  Any  restriction  upon  it,  deriving 
validity  from  an  external  source,  would  imply  a  diminution  of  its 
sovereignty  to  the  extent  of  the  restriction,  and  an  investment  of 
that  sovereignty  to  the  same  extent  in  that  power  which  could 
impose  such  restrictions. 

"All  exceptions,  therefore,  to  the  full  and  complete  power  of  a 
nation  within  its  own  territories,  must  be  traced  up  to  the  consent 
of  the  nation  itself.  They  can  flow  from  no  other  legitimate  source. 

"This  consent  may  be  either  express  or  implied.  In  the  latter 
case,  it  is  less  determinate,  exposed  more  to  the  uncertainties  of 
construction;  but,  if  understood,  not  less  obligatory. 

"The  world  being  composed  of  distinct  sovereignties,  possessing 
equal  rights  and  equal  independence,  whose  mutual  benefit  is  pro- 
moted by  intercourse  with  each  other,  and  by  an  interchange  of 
those  good  offices  which  humanity  dictates  and  its  wants  require, 
all  sovereigns  have  consented  to  a  relaxation  in  practice,  in  cases 
under  certain  peculiar  circumstances,  of  that  absolute  and  com- 
plete jurisdiction  within  their  respective  territories  which  sover- 
eignty confers. 

"This  consent  may,  in  some  instances,  be  tested  by  common 
usage,  and  by  common  opinion  growing  out  of  that  usage. 

"A  nation  would  justly  be  considered  as  violating  its  faith, 
although  that  faith  might  not  be  expressly  plighted,  which  should 
suddenly  and  without  previous  notice,  exercise  its  territorial 
powers  in  a  manner  not  consonant  to  the  usages  and  received 
obligations  of  the  civilized  world. 

"This  full  and  absolute  territorial  jurisdiction  being  alike  the 
attribute  of  every  sovereign,  and  being  incapable  of  conferring 
extraterritorial  power,  would  not  seem  to  contemplate  foreign 
sovereigns  nor  their  sovereign  rights  as  its  objects.  One  sovereign 
being  in  no  respect  amenable  to  another,  and  being  bound  by  obli- 
gations of  the  highest  character  not  to  degrade  the  dignity  of  his 
nation,  by  placing  himself  or  its  sovereign  rights  within  the  juris- 
diction of  another,  can  be  supposed  to  enter  a  foreign  territory 


THE  SCHOONER  EXCHANGE           233 

only  under  an  express  license,  or  in  the  confidence  that  the  immuni- 
ties belonging  to  his  independent  sovereign  station,  though  not 
expressly  stipulated,  are  reserved  by  implication,  and  will  be 
extended  to  him. 

"This  perfect  equality  and  absolute  independence  of  sovereigns, 
and  this  common  interest  impelling  them  to  mutual  intercourse, 
and  an  interchange  of  good  offices  with  each  other,  have  given 
rise  to  a  class  of  cases  in  which  every  sovereign  is  understood  to 
waive  the  exercise  of  a  part  of  that  complete  exclusive  territorial 
jurisdiction,  which  has  been  stated  to  be  the  attribute  of  every 
nation. 

"  ist.  One  of  these  is  admitted  to  be  the  exemption  of  the  person 
of  the  sovereign  from  arrest  or  detention  within  a  foreign  territory. 

"If  he  enters  that  territory  with  the  knowledge  and  license  of 
its  sovereign,  that  license,  although  containing  no  stipulation 
exempting  his  person  from  arrest,  is  universally  understood  to 
imply  such  stipulation. 

"Why  has  the  whole  civilized  world  concurred  in  this  construc- 
tion? The  answer  cannot  be  mistaken.  A  foreign  sovereign  is  not 
understood  as  intending  to  subject  himself  to  a  jurisdiction  in- 
compatible with  his  dignity,  and  the  dignity  of  his  nation,  and  it 
is  to  avoid  this  subjection  that  the  license  has  been  obtained. 
The  character  to  whom  it  is  given,  and  the  object  for  which  it  is 
granted,  equally  require  that  it  should  be  construed  to  impart  full 
security  to  the  person  who  has  obtained  it.  This  security,  how- 
ever, need  not  be  expressed;  it  is  implied  from  the  circumstances 
of  the  case. 

"  Should  one  sovereign  enter  the  territory  of  another,  without  the 
consent  of  that  other,  expressed  or  implied,  it  would  present  a 
question  which  does  not  appear  to  be  perfectly  settled,  a  decision 
of  which  is  not  necessary  to  any  conclusion  to  which  the  court  may 
come  in  the  cause  under  consideration.  If  he  did  not  thereby  ex- 
pose himself  to  the  territorial  jurisdiction  of  the  sovereign,  whose 
dominions  he  had  entered,  it  would  seem  to  be  because  all  sov- 
ereigns impliedly  engage  not  to  avail  themselves  of  a  power  over 
their  equal,  which  a  romantic  confidence  in  their  magnanimity 
has  placed  in  their  hands. 

"  2d.  A  second  case,  standing  on  the  same  principles  with  the 


234  ARMED  FORCES  AND  WARSHIPS 

first,  is  the  immunity  which  all  civilized  nations  allow  to  foreign 
ministers. 

"Whatever  may  be  the  principle  on  which  this  immunity  is 
established,  whether  we  consider  him  as  hi  the  place  of  the  sover- 
eign he  represents,  or  by  a  political  fiction  suppose  him  to  be 
extraterritorial,  and,  therefore,  hi  point  of  law,  not  within  the 
jurisdiction  of  the  sovereign  at  whose  court  he  resides;  still  the 
immunity  itself  is  granted  by  the  governing  power  of  the  nation 
to  which  the  minister  is  deputed.  This  fiction  of  exterritoriality 
[extraterritoriality]  could  not  be  erected  and  supported  against  the 
will  of  the  sovereign  of  the  territory.  He  is  supposed  to  assent 
to  it. 

"This  consent  is  not  expressed.  It  is  true  that  in  some  coun- 
tries, and  in  this  among  others,  a  special  law  is  enacted  for  the 
case.  But  the  law  obviously  proceeds  on  the  idea  of  prescribing 
the  punishment  of  an  act  previously  unlawful,  not  of  granting  to 
a  foreign  minister  a  privilege  which  he  would  not  otherwise  possess. 

"The  assent  of  the  sovereign  to  the  very  important  and  exten- 
sive exemptions  from  territorial  jurisdiction  which  are  admitted  to 
attach  to  foreign  ministers,  is  implied  from  the  considerations 
that,  without  such  exemption,  every  sovereign  would  hazard  his 
own  dignity  by  employing  a  public  minister  abroad.  His  minister 
would  owe  temporary  and  local  allegiance  to  a  foreign  prince,  and 
would  be  less  competent  to  the  objects  of  his  mission.  A  sovereign 
committing  the  interests  of  his  nation  with  a  foreign  power,  to 
the  care  of  a  person  whom  he  has  selected  for  that  purpose,  cannot 
intend  to  subject  his  minister  in  any  degree  to  that  power;  and, 
therefore,  a  consent  to  receive  him,  implies  a  consent  that  he  shall 
possess  those  privileges  which  his  principal  intended  he  should 
retain,  privileges  which  are  essential  to  the  dignity  of  his  sovereign, 
and  to  the  duties  he  is  bound  to  perform. 

"In  what  cases  a  minister,  by  infracting  the  laws  of  the  country 
in  which  he  resides,  may  subject  himself  to  other  punishment  than 
will  be  inflicted  by  his  own  sovereign,  is  an  inquiry  foreign  to  the 
present  purpose.  If  his  crimes  be  such  as  to  render  him  amenable 
to  the  local  jurisdiction,  it  must  be  because  they  forfeit  the  priv- 
ileges annexed  to  his  character;  and  the  minister,  by  violating  the 
conditions  under  which  he  was  received  as  the  representative  of  a 


THE  SCHOONER  EXCHANGE           235 

foreign  sovereign,  has  surrendered  the  immunities  granted  on  those 
conditions;  or,  according  to  the  true  meaning  of  the  original  as- 
sent, has  ceased  to  be  entitled  to  them. 

"3d.  A  third  case  in  which  a  sovereign  is  understood  to  cede  a 
portion  of  his  territorial  jurisdiction  is,  where  he  allows  the  troops 
of  a  foreign  prince  to  pass  through  his  dominions. 

"In  such  case,  without  any  express  declaration  waiving  jurisdic- 
tion over  the  army  to  which  this  right  of  passage  has  been  granted, 
the  sovereign  who  should  attempt  to  exercise  it  would  certainly  be 
considered  as  violating  his  faith.  By  exercising  it,  the  purpose  for 
which  the  free  passage  was  granted  would  be  defeated,  and  a  por- 
tion of  the  military  force  of  a  foreign  independent  nation  would  be 
diverted  from  those  national  objects  and  duties  to  which  it  was 
applicable,  and  would  be  withdrawn  from  the  control  of  the  sover- 
eign whose  power  and  whose  safety  might  greatly  depend  on  re- 
taining the  exclusive  command  and  disposition  of  this  force.  The 
grant  of  a  free  passage,  therefore,  implies  a  waiver  of  all  jurisdic- 
tion over  the  troops  during  their  passage,  and  permits  the  foreign 
general  to  use  that  discipline,  and  to  inflict  those  punishments 
which  the  government  of  his  army  may  require. 

"But  if,  without  such  express  permit,  an  army  should  be  led 
through  the  territories  of  a  foreign  prince,  might  the  jurisdiction 
of  the  territory  be  rightfully  exercised  over  the  individuals  com- 
posing this  army? 

"Without  doubt,  a  military  force  can  never  gain  immunities  of 
any  other  description  than  those  which  war  gives,  by  entering  a 
foreign  territory  against  the  will  of  its  sovereign.  But  if  his  con- 
sent, instead  of  being  expressed  by  a  particular  license,  be  expressed 
by.  a  general  declaration  that  foreign  troops  may  pass  through  a 
specified  tract  of  country,  a.  distinction  between  such  general  per- 
mit and  a  particular  license  is  not  perceived.  It  would  seem  rea- 
sonable that  every  immunity  which  would  be  conferred  by  a  special 
license,  would  be  in  like  manner  conferred  by  such  general  permit. 

"We  have  seen  that  a  license  to  pass  through  a  territory  implies 
immunities  not  expressed,  and  it  is  material  to  inquire  why  the 
license  itself  may  not  be  presumed. 

"It  is  obvious  that  the  passage  of  an  army  through  a  foreign 
territory  will  probably  be  at  all  times  inconvenient  and  injuri- 


236  ARMED  FORCES  AND  WARSHIPS 

ous,  and  would  often  be  imminently  dangerous  to  the  sovereign 
through  whose  dominion  it  passed.  Such  a  practice  would  break 
down  some  of  the  most  decisive  distinctions  between  peace  and 
war,  and  would  reduce  a  nation  to  the  necessity  of  resisting  by 
war  an  act  not  absolutely  hostile  in  its  character,  or  of  exposing 
itself  to  the  strategems  and  frauds  of  a  power  whose  integrity 
might  be  doubted,  and  who  might  enter  the  country  under  de- 
ceitful pretexts.  It  is  for  reasons  like  these  that  the  general  license 
to  foreigners  to  enter  the  dominions  of  a  friendly  power,  is  never 
understood  to  extend  to  a  military  force;  and  an  army  marching 
into  the  dominions  of  another  sovereign,  may  justly  be  considered 
as  committing  an  act  of  hostility;  and,  if  not  opposed  by  force, 
acquires  no  privilege  by  its  irregular  and  improper  conduct.  It 
may,  however,  well  be  questioned  whether  any  other  than  the 
sovereign  power  of  the  state  be  capable  of  deciding  that  such 
military  commander  is  without  a  license. 

"But  the  rule  which  is  applicable  to  armies,  does  not  appear  to 
be  equally  applicable  to  ships  of  war  entering  the  ports  of  a  friendly 
power.  The  injury  inseparable  from  the  march  of  an  army 
through  an  inhabited  country,  and  the  dangers  often,  indeed  gener- 
ally, attending  it,  do  not  ensue  from  admitting  a  ship  of  war,  with- 
out a  special  license,  into  a  friendly  port.  A  different  rule,  there- 
fore, with  respect  to  this  species  of  military  force  has  been  gener- 
ally adopted.  If,  for  reasons  of  state,  the  ports  of  a  nation 
generally,  or  any  particular  ports  be  closed  against  vessels  of  war 
generally,  or  the  vessels  of  any  particular  nation,  notice  is  usually 
given  of  such  determination.  If  there  be  no  prohibition,  the  ports 
of  a  friendly  nation  are  considered  as  open  to  the  public  ships  of 
all  powers  with  whom  it  is  at  peace,  and  they  are  supposed  to  enter 
such  ports  and  to  remain  hi  them  while  allowed  to  remain,  under 
the  protection  of  the  government  of  the  place. 

"In  almost  every  instance,  the  treaties  between  civilized  na- 
tions contain  a  stipulation  to  this  effect  in  favor  of  vessels  driven 
in  by  stress  of  weather  or  other  urgent  necessity.  In  such  cases 
the  sovereign  is  bound  by  compact  to  authorize  foreign  vessels  to 
enter  his  ports.  The  treaty  binds  him  to  allow  vessels  in  distress 
to  find  refuge  and  asylum  in  his  ports,  and  this  is  a  license  which  he 
is  not  at  liberty  to  retract.  If  would  be  difficult  to  assign  a  reason 


THE  SCHOONER  EXCHANGE          237 

for  withholding  from  a  license  thus  granted,  any  immunity  from 
local  jurisdiction  which  would  be  implied  in  a  special  license. 

"If  there  be  no  treaty  applicable  to  the  case,  and  the  sovereign, 
from  motives  deemed  adequate  by  himself,  permits  his  ports  to 
remain  open  to  the  public  ships  of  foreign  friendly  powers,  the 
conclusion  seems  irresistible,  that  they  enter  by  his  assent.  And 
if  they  enter  by  his  assent  necessarily  implied,  no  just  reason  is 
perceived  by  the  court  for  distinguishing  their  case  from  that  of 
vessels  which  enter  by  express  assent. 

"In  all  the  cases  of  exemption  which  have  been  reviewed,  much 
has  been  implied,  but  the  obligation  of  what  was  implied  has  been 
found  equal  to  the  obligation  of  that  which  was  expressed.  Are 
there  reasons  for  denying  the  application  of  this  principle  to  ships 
of  war? 

"  In  this  part  of  the  subject  a  difficulty  is  to  be  encountered,  the 
seriousness  of  which  is  acknowledged,  but  which  the  court  will  not 
attempt  to  evade. 

"Those  treaties  which  provide  for  the  admission  and  safe  de- 
parture of  public  vessels  entering  a  port  from  stress  of  weather,  or 
other  urgent  cause,  provide  in  like  manner  for  the  private  vessels 
of  the  nation;  and  where  public  vessels  enter  a  port  under  the 
general  license  which  is  implied  merely  from  the  absence  of  a  pro- 
hibition, they  are,  it  may  be  urged,  in  the  same  condition  with 
merchant  vessels  entering  the  same  port  for  the  purposes  of  trade 
who  cannot  thereby  claim  any  exemption  from  the  jurisdiction  of 
the  country.  It  may  be  contended,  certainly  with  much  plausi- 
bility if  not  correctness,  that  the  same  rule,  and  same  principle 
are  applicable  to  public  and  private  ships;  and  since  it  is  admitted 
that  private  ships  entering  without  special  license  become  subject 
to  the  local  jurisdiction,  it  is  demanded  on  what  authority  an 
exception  is  made  in  favor  of  ships  of  war. 

"  It  is  by  no  means  conceded,  that  a  private  vessel  really  availing 
herself  of  an  asylum  provided  by  treaty,  and  not  attempting  to 
trade,  would  become  amenable  to  the  local  jurisdiction,  unless  she 
committed  some  act  forfeiting  the  protection  she  claims  under 
compact.  On  the  contrary,  motives  may  be  assigned  for  stipulating 
and  according  immunities  to  vessels  in  cases  of  distress,  which 
would  not  be  demanded  for,  or  allowed  to  those  which  enter 


238  ARMED  FORCES  AND  WARSHIPS 

voluntarily  and  for  ordinary  purposes.  On  this  part  of  the  subject, 
however,  the  court  does  not  mean  to  indicate  any  opinion.  The 
case  itself  may  possibly  occur,  and  ought  not  to  be  prejudged. 

"Without  deciding  how  far  such  stipulations  in  favor  of  dis- 
tressed vessels,  as  are  usual  in  treaties,  may  exempt  private  ships 
from  the  jurisdiction  of  the  place,  it  may  safely  be  asserted,  that 
the  whole  reasoning  upon  which  such  exemption  has  been  implied 
in  other  cases,  applies  with  full  force  to  the  exemption  of  ships  of 
war  in  this.  •* 

"'It  is  impossible  to  conceive,'  says  Vattel,  'that  a  prince  who 
sends  an  ambassador  or  any  other  minister  can  have  any  intention 
of  subjecting  him  to  the  authority  of  a  foreign  power,  and  this 
consideration  furnishes  an  additional  argument,  which  completely 
establishes  the  independency  of  a  public  minister.  If  it  cannot  be 
reasonably  presumed  that  his  sovereign  means  to  subject  him  to 
the  authority  of  the  prince  to  whom  he  is  sent,  the  latter,  in  re- 
ceiving the  minister,  consents  to  admit  him  on  the  footing  of  in- 
dependency; and  thus  there  exists  between  the  two  princes  a  tacit 
convention,  which  gives  a  new  force  to  the  natural  obligation.' 

"Equally  impossible  is  it  to  conceive,  whatever  may  be  the 
construction  as  to  private  ships,  that  a  prince  who  stipulates  a 
passage  for  his  troops,  or  an  asylum  for  his  ships  of  war  in  distress, 
should  mean  to  subject  his  army  or  his  navy  to  the  jurisdiction  of 
a  foreign  sovereign.  And  if  this  cannot  be  presumed,  the  sover- 
eign of  the  port  must  be  considered  as  having  conceded  the  privi- 
lege to  the  extent  in  which  it  must  have  been  understood  to  be 
asked. 

"To  the  court,  it  appears,  that  where,  without  treaty,  the  ports 
of  a  nation  are  open  to  the  private  and  public  ships  of  a  friendly 
power,  whose  subjects  have  also  liberty  without  special  license,  to 
enter  the  country  for  business  or  amusement,  a  clear  distinction  is 
to  be  drawn  between  the  rights  accorded  to  private  individuals  or 
private  trading  vessels,  and  those  accorded  to  public  armed  ships 
which  constitute  a  part  of  the  military  force  of  the  nation. 

"The  preceding  reasoning  has  maintained  the  propositions  that 
all  exemptions  from  territorial  jurisdiction  must  be  derived  from 
the  consent  of  the  sovereign  of  the  territory;  that  this  consent  may 
be  implied  or  expressed;  and  that,  when  implied,  its  extent  must 


THE  SCHOONER  EXCHANGE  239 

be  regulated  by  the  nature  of  the  case,  and  the  views  under  which 
the  parties  requiring  and  conceding  it  must  be  supposed  to  act. 

"When  private  individuals  of  one  nation  spread  themselves 
through  another  as  business  or  caprice  may  direct,  mingling  in- 
discriminately with  the  inhabitants  of  that  other,  or  when  mer- 
chant vessels  enter  for  the  purposes  of  trade,  it  would  be  obviously 
inconvenient  and  dangerous  to  society,  and  would  subject  the 
laws  to  continual  infraction,  and  the  government  to  degradation, 
if  such  individuals  or  merchants  did  not  owe  temporary  and  local 
allegiance,  and  were  not  amenable  to  the  jurisdiction  of  the  coun- 
try. Nor  can  the  foreign  sovereign  have  any  motive  for  wishing 
such  exemption.  His  subjects  thus  passing  into  foreign  countries 
are  not  employed  by  him,  nor  are  they  engaged  in  national  pur- 
suits. Consequently  there  are  powerful  motives  for  not  exempt- 
ing persons  of  this  description  from  the  jurisdiction  of  the  country 
in  which  they  are  found,  and  no  one  motive  for  requiring  it.  The 
implied  license,  therefore,  under  which  they  enter,  can  never  be 
construed  to  grant  such  exemption. 

"But  in  all  respects  different  is  the  situation  of  a  public  armed 
ship.  She  constitutes  a  part  of  the  military  force  of  her  nation; 
acts  under  the  immediate  and  direct  command  of  the  sovereign; 
is  employed  by  him  in  national  objects.  He  has  many  and  power- 
ful motives  for  preventing  those  objects  from  being  defeated  by 
the  interference  of  a  foreign  state.  Such  interference  cannot  take 
place  without  affecting  his  power  and  his  dignity.  The  implied 
license,  therefore,  under  which  such  vessel  enters  a  friendly  port, 
may  reasonably  be  construed,  and  it  seems  to  the  court,  ought  to  be 
construed,  as  containing  an  exemption  from  the  jurisdiction  of  the 
sovereign,  within  whose  territory  she  claims  the  rights  of  hospitality. 

"Upon  these  principles,  by  the  unanimous  consent  of  nations,  a 
foreigner  is  amenable  to  the  laws  of  the  place;  but  certainly  in 
practice,  nations  have  not  yet  asserted  their  jurisdiction  over  the 
public  armed  ships  of  a  foreign  sovereign  entering  a  port  open  for 
their  reception. 

"Bynkershoek,  a  jurist  of  great  reputation,  has  indeed  main- 
tained that  the  property  of  a  foreign  sovereign  is  not  distinguish- 
able by  any  legal  exemption  from  the  property  of  an  ordinary 
individual,  and  has  quoted  several  cases  in  which  courts  have 


240  ARMED  FORCES  AND  WARSHIPS 

exercised  jurisdiction  over  causes  in  which  a  foreign  sovereign  was 
made  a  party  defendant. 

"Without  indicating  any  opinion  on  this  question,  it  may  safely 
be  affirmed,  that  there  is  a  manifest  distinction  between  the  private 
property  of  the  person  who  happens  to  be  a  prince,  and  that  mili- 
tary force  which  supports  the  sovereign  power,  and  maintains  the 
dignity  and  the  independence  of  a  nation.  A  prince,  by  acquiring 
private  property  in  a  foreign  country,  may  possibly  be  considered 
as  subjecting  that  property  to  the  territorial  jurisdiction;  he  may 
be  considered  as  so  far  laying  down  the  prince,  and  assuming  the 
character  of  a  private  individual;  but  this  he  cannot  be  presumed 
to  do  with  respect  to  any  portion  of  that  armed  force,  which  up- 
holds his  crown,  and  the  nation  he  is  intrusted  to  govern. 

"The  only  applicable  case  cited  by  Bynkershoek,  is  that  of  the 
Spanish  ships  of  war,  seized  in  Flushing  for  a  debt  due  from  the 
King  of  Spain.  In  that  case  the  States-General  interposed;  and 
there  is  reason  to  believe,  from  the  manner  in  which  the  trans- 
action is  stated,  that,  either  by  the  interference  of  government,  or 
the  decision  of  the  court,  the  vessels  were  released. 

"This  case  of  the  Spanish  vessels  is,  it  is  believed,  the  only  case 
furnished  by  the  history  of  the  world,  of  an  attempt  made  by  an 
individual  to  assert  a  claim  against  a  foreign  prince,  by  seizing  the 
armed  vessels  of  the  nation.  That  this  proceeding  was  at  once 
arrested  by  the  government,  in  a  nation  which  appears  to  have 
asserted  the  power  of  proceeding  in  the  same  manner  against  the 
private  property  of  the  prince,  would  seem  to  furnish  no  feeble 
argument  in  support  of  the  universality  of  the  opinion  hi  favor  of 
the  exemption  claimed  for  ships  of  war.  The  distinction  made  in 
our  own  laws  between  public  and  private  ships  would  appear  to 
proceed  from  the  same  opinion. 

"It  seems  then  to  the  court,  to  be  a  principle  of  public  law,  that 
national  ships  of  war,  entering  the  port  of  a  friendly  power  open 
for  their  reception,  are  to  be  considered  as  exempted  by  the  con- 
sent of  that  power  from  its  jurisdiction. 

"Without  doubt,  the  sovereign  of  the  place  is  capable  of  de- 
stroying this  implication.  He  may  claim  and  exercise  jurisdic- 
tion either  by  employing  force,  or  by  subjecting  such  vessels  to 
the  ordinary  tribunals.  But  until  such  power  be  exerted  in  a 


THE  SCHOONER  EXCHANGE          241 

manner  not  to  be  misunderstood,  the  sovereign  cannot  be  consid- 
ered as  having  imparted  to  the  ordinary  tribunals  a  jurisdiction, 
which  it  would  be  a  breach  of  faith  to  exercise.  Those  general 
statutory  provisions,  therefore,  which  are  descriptive  of  the  ordi- 
nary jurisdiction  of  the  judicial  tribunals,  which  give  an  individual 
whose  property  has  been  wrested  from  him,  a  right  to  claim  that 
property  in  the  courts  of  the  country  in  which  it  is  found,  ought 
not,  in  the  opinion  of  this  court,  to  be  so  construed  as  to  give 
them  jurisdiction  in  a  case  in  which  the  sovereign  power  has 
impliedly  consented  to  waive  its  jurisdiction. 

"  The  arguments  in  favor  of  this  opinion  which  have  been  drawn 
from  the  general  inability  of  the  judicial  power  to  enforce  its 
decisions  in  cases  of  this  description,  from  the  consideration  that 
the  sovereign  power  of  the  nation  is  alone  competent  to  avenge 
wrongs  committed  by  a  sovereign,  that  the  questions  to  which 
such  wrongs  give  birth  are  rather  questions  of  policy  than  of  law, 
that  they  are  for  diplomatic,  rather  than  legal  discussion,  are  of 
great  weight,  and  merit  serious  attention.  But  the  argument  has 
already  been  drawn  to  a  length,  which  forbids  a  particular  exami- 
nation of  these  points. 

"The  principles  which  have  been  stated,  will  now  be  applied 
to  the  case  at  bar. 

"In  the  present  state  of  the  evidence  and  proceedings,  the  Ex- 
change must  be  considered  as  a  vessel,  which  was  the  property  of 
the  libelants,  whose  claim  is  repelled  by  the  fact  that  she  is  now 
a  national  armed  vessel,  commissioned  by,  and  in  the  service  of 
the  Emperor  of  France.  The  evidence  of  this  fact  is  not  contro- 
verted. But  it  is  contended  that  it  constitutes  no  bar  to  an  inquiry 
into  the  validity  of  the  title,  by  which  the  Emperor  holds  this  ves- 
sel. Every  person,  it  is  alleged,  who  is  entitled  to  property  brought 
within  the  jurisdiction  of  our  courts,  has  a  right  to  assert  his  title 
in  those  courts,  unless  there  be  some  law  taking  his  case  out  of  the 
general  rule.  It  is  therefore  said  to  be  the  right,  and  if  it  be  the 
right,  it  is  the  duty  of  the  court,  to  inquire  whethef  this  title  has 
been  extinguished  by  an  act,  the  validity  of  which  is  recognized 
by  national  or  municipal  law. 

"If  the  preceding  reasoning  be  correct,  the  Exchange,  being  a 
public  armed  ship,  in  the  service  of  a  foreign  sovereign,  with  whom 


242  ASYLUM 

the  Government  of  the  United  States  is  at  peace,  and  having 
entered  an  American  port  open  for  her  reception,  on  the  terms  on 
which  ships  of  war  are  generally  permitted  to  enter  the  ports  of  a 
friendly  power,  must  be  considered  as  having  come  into  the  Ameri- 
can territory,  under  an  implied  promise,  that  while  necessarily 
within  it,  and  demeaning  herself  in  a  friendly  manner,  she  should 
be  exempt  from  the  jurisdiction  of  the  country. 

"If  this  opinion  be  correct,  there  seems  to  be  a  necessity  for 
admitting  that  the  fact  might  be  disclosed  to  the  court  by  the 
suggestion  of  the  attorney  for  the  United  States. 

"I  am  directed  to  deliver  it,  as  the  opinion  of  the  court,  that 
the  sentence  of  the  Circuit  Court  reversing  the  sentence  of  the 
District  Court,  in  the  case  of  the  Exchange  be  reversed,  and  that 
of  the  District  Court,  dismissing  the  libel,  be  affirmed." 

(The  Schooner  Exchange  v.  M'Faddon  and  others,  7  Cranch,  116; 
2  Curtis,  487.) 


§27.  ASYLUM 


THE  SPANISH  WARSHIPS  AT  NEW  ORLEANS  (1862) 

IN  1862,  while  the  city  of  New  Orleans  was  occupied  by  the 
forces  of  the  United  States,  three  Spanish  men-of-war  then  in  that 
port  received  on  board  a  large  number  of  passengers  for  Cuba, 
among  whom  were  many  citizens  of  the  United  States  who,  under 
the  orders  then  in  force,  were  not  permitted  to  leave  the  city 
without  passes.  General  Butler,  the  officer  in  command,  claimed 
the  right  to  search  the  vessels  "for  criminals  other  than  rebels," 
and  after  much  difficulty  he  obtained  the  privilege  of  searching 
two  of  the  ships.  In  consequence  of  this  occurrence,  he  pro- 
hibited the  entry  of  Spanish  men-of-war  above  the  forts  till 
further  orders  from  the  War  Department.  Mr.  Seward,  while 
recommending  to  the  Secretary  of  War  the  suspension  of  the  pro- 
hibition pending  explanations  from  the  Spanish  Government, 
made  urgent  representations  to  the  Spanish  Minister.  The 
Spanish  Government,  after  considering  the  subject,  defended  the 
action  of  its  naval  officers  on  the  ground  that  asylum  at  least  for 


THE  OVERTHROW  OF  BALMACEDA        243 

political  offenders  might  be  granted  on  men-of-war.  Mr.  Seward 
refused  to  concede  this  claim,  saying  that  the  United  States 
adhered  to  its  former  declaration  that  no  ship  of  war  of  any  nation 
would  be  expected  to  carry  into  or  out  from  any  port  of  the  United 
States,  which  was  either  occupied  by  their  forces  or  in  the  posses- 
sion of  the  insurgents,  any  person  who  did  not  actually  belong  to 
the  civil,  military,  or  naval  service  of  the  country  whose  flag  the 
vessel  carried,  and  especially  that  ships  of  war  should  not,  with- 
out express  leave  of  the  military  authorities,  carry  into  or  out  of 
such  ports  any  citizen  of  the  United  States.  It  was  only,  said  Mr. 
Seward,  on  an  expected  compliance  with  these  terms  that  any 
foreign  ship  of  war  could  enter  a  port  in  a  military  occupation 
during  the  Civil  War. 

(Extract  from  an  article  by  J.  B.  Moore:  Asylum  in  Legations 
and  Consulates  and  in  Vessels,  in  Political  Science  Quarterly  [1892], 
vol.  vn,  pp.  410-11,  citing  Dip.  Cor.  [1863],  part  n,  p.  915.) 


THE  OVERTHROW  OF  BALMACEDA  (1891) 

DURING  the  summer  of  1891,  while  the  civil  war  growing  out  of 
the  dispute  between  President  Balmaceda  and  the  Chilean  Con- 
gress was  raging,  Mr.  Egan,  Minister  of  the  United  States  at 
Santiago,  afforded  asylum  to  Senors  Augustin  Edwards  and  Edu- 
ardo  Matte,  prominent  Congressionalists,  on  the  ground,  as  he 
stated,  that  there  was  reason  to  apprehend  that  their  lives  were  in 
danger.  Subsequently  Senor  Edwards  was  given  a  safe-conduct 
and  went  to  Callao,  leaving  Senor  Matte  in  the  legation.  A  few 
days  later  an  unofficial  intimation  was  conveyed  to  Mr.  Egan 
through  the  dean  of  the  diplomatic  corps  that  the  President  was 
much  annoyed  at  the  granting  of  asylum  to  Congressionalists, 
and  that  if  they  did  not  leave  immediately  the  legations  might  be 
searched,  that  of  the  United  States  being  particularly  mentioned. 
On  hearing  of  this  threat,  Mr.  Egan  called  at  the  Ministry  of 
Foreign  Relations  and  stated  that,  while  he  was  prepared  to  dis- 
cuss the  question  of  asylum  in  a  friendly  spirit,  his  legation  could 
not  be  searched  but  by  force,  and  that  he  would  himself  shoot  the 
first  man  who  attempted  to  enter  it  for  that  purpose.  On  the 
following  day  he  received  from  the  President  an  assurance  that 


244  ASYLUM 

there  was  no  intention  to  search  any  of  the  legations,  "and  above 
all  that  of  the  United  States."  (House  Ex.  Doc.  91,  52d  Cong, 
ist  Sess.,  p.  64.) 

On  the  2ist  of  August  the  army  of  Balmaceda  was  routed  at 
Vina  del  Mar;  and  the  excitement  and  confusion  which  that  event 
occasioned  in  Santiago  culminated  after  the  dispersion  of  his 
forces  at  Placillas  on  the  28th.  His  resignation  on  the  2Qth  was 
followed  by  the  demoralization  of  the  military  and  police  forces, 
and  the  houses  of  some  of  his  prominent  partisans  were  attacked. 
Toward  evening,  however,  order  was  restored  and  all  danger  of 
further  trouble  seemed  to  vanish.  Meanwhile  many  persons  had 
sought  refuge  in  the  houses  of  the  foreign  ministers.  The  American 
Legation  received  eighty  and  the  Spanish  Legation  about  the  same 
number.  The  Brazilian  Legation  received  eight;  the  French, 
five;  the  Uruguayan,  several;  the  German,  two;  the  English,  one, 
perhaps  involuntarily.1  Balmaceda  took  refuge  in  the  Argentine 
Legation.  On  the  subsidence  of  the  first  excitement,  many  of  the 
refugees  left  the  legations,  some  seeking  concealment  elsewhere  and 
others  giving  bond  to  appear  before  the  tribunals.  Such  was  the 
course  pursued  by  the  refugees  in  the  Brazilian  and  French  Lega- 
tions. The  refugee  in  the  English  Legation  went  out  immediately 
to  his  own  house,  promising  to  remain  there.  Balmaceda  com- 
mitted suicide  in  the  Argentine  Legation  on  the  igth  of  Septem- 
ber. One  refugee,  General  Velasquez,  ex-Minister  of  War,  re- 
mained in  the  German  Legation,  but,  encouraged  by  the  German 
Minister,  he  proposed  to  give  himself  up  as  soon  as  he  had  suf- 
ficiently recovered  from  the  effects  of  an  accident  from  which  he 
was  suffering.  In  no  instance  was  safe-conduct  granted. 

No  trouble  occurred  till  the  22d  of  September,  when  the  govern- 
ment, alleging  that  the  refugees  and  their  friends  were  abusing 
the  privilege  of  asylum,  began  to  police  the  American  and  the 
Spanish  Legations.  At  that  time  there  were  nineteen  refugees  in 

1  In  a  dispatch  of  August  31,  Mr.  Egan  says  that  "the  only  legation  which  dosed 
its  doors  and  denied  asylum  was  that  of  England,  which  refused  to  admit  a  single  per- 
son." In  a  telegram  of  September  27  he  states  that  two  persons  entered  the  British 
Legation.  In  a  dispatch  of  September  29,  he  states  that  "one  or  two"  got  in  "across 
the  roof"  of  a  neighboring  house  that  was  being  searched.  Subsequently  he  states 
that  there  was  one.  But  the  original  statement  is  doubtless  correct,  in  so  far  as  it  rep- 
resents the  policy  of  the  British  Legation.  (Note  by  J.  B.  Moore.) 


THE  OVERTHROW  OF  BALMACEDA        245 

the  former  and  five  in  the  latter;  and  on  the  first  three  days  of 
the  surveillance  many  persons  were  interfered  with  in  entering  or 
in  leaving  the  buildings.  Mr.  Egan  protested  against  the  course 
of  the  government,  contending  that  its  action  was  without  pre- 
cedent and  violative  of  the  rights  of  the  legation,  while  Sefior 
Matta,  the  Minister  for  Foreign  Affairs,  replied  in  a  manner  not 
calculated  to  allay  irritation.  In  view  of  what  has  been  shown  to 
have  been  the  practice  in  cases  of  asylum,  to  say  nothing  of  the 
opinions  of  publicists  on  the  subject,  the  policing  of  a  minister's 
domicile,  when  it  is  used  as  a  shelter  for  refugees,  does  not  present 
a  ground  for  complaint.  On  the  other  hand,  any  excesses  that  may 
be  committed  in  the  enforcement  of  such  a  measure  may  form  a 
subject  for  representation  with  a  view  to  their  correction.  Mr. 
Egan  not  only  protested  against  particular  acts  which  he  regarded 
as  unwarrantable,  but  also  against  the  surveillance  itself.  Senor 
Matta  declined  to  consider  the  protests  even  against  particular 
acts  as  a  subject  for  discussion.  Nevertheless,  after  September  25 
the  strictness  of  the  surveillance  was  relaxed,  though  for  several 
days  in  the  latter  part  of  December  it  was  again  closely  enforced, 
especially  about  the  Spanish  Legation. 

On  September  29  the  number  of  refugees  in  the  American  Lega- 
tion had  been  reduced  to  fifteen,  one  of  whom  not  long  afterward 
went  out  on  bond.  On  January  9,  1892,  Mr.  Egan  escorted  two 
refugees  to  Valparaiso  and  put  them  on  board  the  United  States 
man-of-war  Yorktown.  On  the  1 3th  he  and  the  Spanish  and  Italian 
Ministers  disposed  of  seven  refugees  in  the  same  manner  —  five 
from  the  American  and  two  from  the  Spanish  Legation.  These 
were  all  that  remained.  What  had  become  of  the  rest  does  not 
appear,  though  the  correspondent  of  the  Herald,  in  a  dispatch  from 
Valparaiso  of  January  13,  stated  that  one  of  the  nine  who  were 
apparently  in  the  American  Legation  at  the  opening  of  the  year 
had  determined  to  stay  in  Chile  "and  fight  his  case  out  in  the 
courts."  The  refugees  were  transported  on  the  Yorktown  to 
Callao,  Sefior  Pereira,  who  had  succeeded  Senor  Matta  in  the 
Foreign  Office,  refusing  to  guarantee  their  security  on  private 
vessels  calling  at  Chilean  ports;  and  he  expressed  displeasure  at 
the  minister's  accompanying  them,  apparently  being  averse  to 
the  display  of  any  sign  of  diplomatic  authority  in  the  matter. 


246  MERCHANT  VESSELS 

With  the  departure  of  the  refugees,  the  police  were  removed  from 
about  the  diplomatic  residences. 

In  discussing  the  question  of  safe-conducts,  Mr.  Egan  and 
Senor  Matta  set  forth  their  views  as  to  the  legal  foundations  and 
limitations  of  asylum.  They  both  accepted  the  extraterritoriality 
of  a  minister's  domicile,  but  while  Senor  Matta  deduced  from  that 
notion  merely  the  right  to  grant  asylum,  Mr.  Egan  pushed  it 
further.  Senor  Matta  argued  that  safe-conducts  might  have  been 
and  might  be  given,  not  in  virtue  of  any  right  on  the  part  of  a 
legation  to  demand  them,  but  "of  the  courtesy,  convenience,  and 
will"  of  the  government,  and  with  due  consideration  for  its  own 
laws  and  interests;  and  he  maintained  that  safe-conducts  could 
not  be  granted  for  men  who,  as  was  the  case  with  the  refugees  in 
question,  had  been  submitted  to  the  tribunals.  Mr.  Egan  re- 
plied that  his  house  was  "an  integral  part  of  the  United  States," 
and  that  "without  the  will  and  permission"  of  that  government, 
Chile  "could  not  consider"  as  subject  to  her  "judicial  action" 
persons  "who,  from  every  point  of  view,"  were  "beyond  its  juris- 
diction;" and  he  added  that  as  Senor  Matta  had  recognized  that 
safe-conducts  had  been  and  might  be  given  "as  acts  of  courtesy 
and  at  the  spontaneous  will  of  the  government,"  he  could  not 
be  surprised  if  the  United  States  should  "interpret  as  an  act  of 
but  slight  courtsey  and  consideration"  the  refusal  of  the  Chilean 
Government  now  to  grant  them  "in  accordance  with  the  respect 
due  to  the  invariable  practice  and  international  policy  of  Chile." 

(Extract  from  an  article  by  J.  B.  Moore:  Asylum  in  Legations 
and  Consulates  and  in  Vessels,  in  Political  Science  Quarterly  [1892], 
vol.  vn,  pp.  226-29.) 


§28.  MERCHANT  VESSELS 


THE  CASES  OF  THE  SALLY  AND  THE  NEWTON  (1806) 

Opinion  of  the  Council  of  State  in  regard  to  the  question  of  competence  in  the  matter  of 
ojfenses  committed  on  board  neutral  vessels  in  ports  and  roads  of  France,  November 
20,  1806. 

THE  Council  of  State,  having  had  the  matters  referred  to  them 
by  His  Majesty  and  having  heard  thereon  the  report  of  the 


THE  CASES  OF  THE  SALLY  AND  THE  NEWTON       247 

division  on  legislation  made  by  the  Grand  Judge,  the  Minister  of 
Justice,  with  respect  to  denning  the  limits  of  jurisdiction  claimed 
by  consuls  of  the  United  States  of  America  in  the  ports  of 
Marseilles  and  Antwerp  in  connection  with  :offenses  'Commit- 
ted on  board  vessels  of  their  nation  in  the  ports  and  roads  of 
France; 

Considering  that  a  neutral  vessel  cannot  be  regarded  vaguely 
as  a  neutral  place,  and  that  the  protection  which  it  is  accorded  hi 
French  ports  cannot  render  local  jurisdiction  incompetent  for 
anything  touching  the  interests  of  the  state; 

And  that  a  neutral  vessel  admitted  into  a  port  of  the  state  is 
clearly  subject  to  the  police  laws  governing  the  place  where  it  is 
received; 

That  the  members  of  its  crew  are  equally  amenable  to  the  courts 
of  the  country  for  offenses  which  they  may  commit,  even  on 
board,  upon  persons  outside  the  crew,  as  well  as  for  agree- 
ments covered  by  common  law  into  which  they  may  enter  with 
such  persons; 

That,  on  the  other  hand,  if  up  to  this  point  local  jurisdiction  is 
unquestionable,  it  is  otherwise  with  respect  to  offenses  committed 
on  board  a  neutral  vessel  by  a  member  of  a  neutral  crew  upon 
.  another  member  of  the  same  crew; 

That,  in  this  case,  the  rights  of  the  neutral  power  should  be 
respected  as  relating  to  the  internal  discipline  of  the  vessel,  with 
which  local  authority  may  not  interfere  when  its  aid  is  not  sought 
or  when  the  tranquillity  of  the  port  is  not  endangered; 

Is  of  the  opinion  that  this  distinction,  which  is  indicated  in  the 
report  of  the  high  judge  and  is  in  conformity  with  usage,  is  the 
only  rule  which  it  is  proper  to  follow  in  this  matter; 

And  applying  this  principle  to  the  two  particular  cases  in  which 
consuls  of  the  United  States  have  claimed  jurisdiction; 

Considering  that,  in  one  of  these  cases,  it  is  a  question  of  ra 
quarrel  which  took  place  in  the  cutter  of  the  American  ship 
Newton  between  two  sailors  of  the  same  ship;  and  in  the  pother, 
of  a  severe  wound  given  by  the  first  mate  of  the  ship  Sally 
to  one  of  the  sailors  for  having  made  ready  a  cutter  without 
his  order; 

Is  of  the  opinion  that  there  is  room  for  entertaining  the  claim 


248  MERCHANT  VESSELS 

and  forbidding  the  French  courts  from  taking  cognizance  of  the 
two  cases  abovenamed. 

(Translation :  Collection  Complete  des  Lois,  Decrets,  Ordonnances, 
Riglemens  et  Avis  du  Conseil-d'Etat  .  .  .  de  1788  d  1824  inclusive- 
ment  [Paris,  1826],  vol.  xvi,  p.  65.) 


THE    CASE  OF  THE  CREOLE  (1853) 

IN  the  course  of  the  thirties  in  a  number  of  instances  (the  Comet, 
Encomium,  Enterprise,  and  Hermosd),  when  American  vessels 
transporting  slaves  from  one  American  port  to  another  were 
driven  by  stress  of  weather  or  other  accident  to  take  refuge  in 
British  ports,  the  local  authorities  had  liberated  their  human  cargo 
in  spite  of  the  vigorous  protests  of  the  American  Consuls.  Be- 
cause of  this  action  the  United  States  made  vigorous  protests  to 
the  British  Government  without  receiving  the  redress  it  claimed. 

In  1840  the  Senate  adopted  a  resolution  declaring  that,  where  a 
vessel  on  the  high  seas,  in  time  of  peace,  engaged  in  a  lawful 
voyage,  was  forced  by  stress  of  weather  or  other  unavoidable 
circumstance  into  the  port  of  a  friendly  power,  the  country  to 
which  she  belonged  lost  "none  of  the  rights  appertaining  to  her 
on  the  high  seas,  either  over  the  vessel  or  the  personal  relations 
of  those  on  board." 

The  excitement  created  by  these  incidents  culminated  in  the 
case  of  the  brig  Creole,  which  sailed  from  Hampton  Roads  for 
New  Orleans  on  the  27th  of  October,  1841,  having  on  board  one 
hundred  and  thirty-five  slaves.  On  the  night  of  the  yth  of  No- 
vember a  portion  of  the  slaves  revolted,  wounded  the  master, 
chief  mate,  and  two  of  the  crew,  and  murdered  one  of  the  passen- 
gers, and  having  secured  possession  of  the  vessel,  ordered  the  mate, 
under  pain  of  death,  to  steer  for  Nassau,  where  the  brig  arrived 
on  the  Qth  of  November.  The  slaves  were  afterwards  liberated, 
under  circumstances  disclosed  below  in  the  opinion  of  Mr.  Bates, 
umpire  of  the  mixed  commission  under  the  treaty  between  the 
United  States  and  Great  Britain  of  1853,  to  which  commission  the 
cases  of  the  Enterprise,  Hermosa,  and  Creole  were  ultimately  sub- 
mitted, on  claims  for  damages. 


THE  CASE  OF  THE  CREOLE  249 

In  the  cases  of  the  Comet  and  Encomium,  which  respectively 
occurred  in  1831  and  February,  1833,  Great  Britain  in  the  latter 
part  of  President  Van  Buren's  Administration  paid  an  indemnity 
of  $116,179.62.  But  in  the  cases  of  the  Enterprise,  Hermosa,  and 
Creole,  which  occurred  after  August  i,  1834,  when  the  act  of  Par- 
liament of  August  28,  1833,  for  the  abolition  of  slavery  in  the 
British  colonies  took  effect,  the  British  Government  refused  to 
acknowledge  any  liability  on  the  ground  that  the  slaves  on  enter- 
ing British  jurisdiction  became  free.  The  United  States,  on  the 
other  hand,  maintained  that  if  a  vessel  were  driven  by  necessity 
to  enter  the  port  of  another  nation  the  local  law  could  not  operate 
so  as  to  affect  existing  rights  of  property  as  .between  persons  on 
board,  or  their  personal  obligations  or  relations  under  the  law  of 
the  country  to  which  the  vessel  belonged.  In  the  case  of  the  Creole 
this  argument  was  emphasized  by  the  fact  that  the  vessel  was 
brought  into  British  jurisdiction  by  means  of  a  crime  against  the 
law  of  the  flag.  The  case  gave  rise  to  animated  discussions  in  the 
British  Parliament  as  well  as  in  the  Congress  of  the  United  States, 
and  came  near  breaking  up  the  negotiations  between  Mr.  Webster 
and  Lord  Ashburton  in  1842. 

Bates,  umpire  in  the  case  of  the  Creole  under  the  convention 
between  the  United  States  and  Great  Britain  of  February  8, 
1853,  rendered  the  following  opinion: 

"This  case  having  been  submitted  to  the  umpire  for  his  de- 
cision, he  hereby  reports  that  the  claim  has  grown  out  of  the  fol- 
lowing circumstances: 

"The  American  brig  Creole,  Captain  Ensor,  sailed  from  Hamp- 
ton Roads,  in  the  State  of  Virginia,  on  the  2yth  October,  1841, 
having  on  board  one  hundred  and  thirty-five  slaves,  bound  for 
New  Orleans.  On  the  7th  November,  at  nine  o'clock  in  the  even- 
ing, a  portion  of  the  slaves  rose  against  the  officers,  crew,  and  pas- 
sengers, wounding  severely  the  captain,  the  chief  mate,  and  two  of 
the  crew,  and  murdering  one  of  the  passengers;  the  mutineers, 
having  got  complete  possession  of  the  vessel,  ordered  the  mate, 
under  threat  of  instant  death  should  he  disobey  or  deceive  them, 
to  steer  for  Nassau,  in  the  bland  of  New  Providence,  where  the 
brig  arrived  on  the  gth  November,  1841. 

"The  American  Consul  was  apprised  of  the  situation  of  the 


250  MERCHANT  VESSELS 

vessel,  and  requested  the  governor  to  take  measures  to  prevent 
the  escape  of  the  slaves,  and  to  have  the  murderers  secured. 
The  consul  received  reply  from  the  governor,  stating  that  under 
the  circumstances  he  would  comply  with  the  request. 

"The  consul  went  on  board  the  brig,  placed  the  mate  hi  com- 
mand in  place  of  the  disabled  master,  and  found  the  slaves  all 
quiet. 

"About  noon  twenty  African  soldiers,  with  an  African  sergeant 
and  corporal,  commanded  by  a  white  officer,  came  on  board.  The 
officer  was  introduced  by  the  consul  to  the  mate  as  commanding 
officer  of  the  vessel. 

"The  consul,  on  returning  to  the  shore,  was  summoned  to 
attend  the  governor  and  council,  who  were  in  session,  who. in- 
formed the  consul  that  they  had  come  to  the  following  decision: 

"'  i  st.  That  the  courts  of  law  have  no  jurisdiction  over  the 
alleged  offenses. 

" '  2d.  That,  as  an  information  had  been  lodged  before  the 
governor,  charging  that  the  crime  of  murder  had  been  com- 
mitted on  board  said  vessel  while  on  the  high  seas,  it  was  ex- 
pedient that  the  parties,  implicated  in  so  grave  a  charge, 
should  not  be  allowed  to  go  at  large,  and  that  an  investiga- 
tion ought  therefore  to  be  made  into  the  charges,  and  exami- 
nations taken  on  oath;  when,  if  it  should  appear  that  the 
original  information  was  correct,  and  that  a  murder  had 
actually  been  committed,  that  all  parties  implicated  in  such 
crime,  or  other  acts  of  violence,  should  be  detained  here  until 
reference  could  be  made  to  the  Secretary  of  State  to  ascer- 
tain whether  the  parties  should  be  delivered  over  to  the  United 
States  Government;  if  not,  how  otherwise  to  dispose  of  them. 

"*3d.  That  as  soon  as  such  examinations  should  be  taken, 
all  persons  on  board  the  Creole,  not  implicated  in  any  of  the 
offences  alleged  to  have  been  committed  on  board  the  vessel, 
must  be  released  from  further  restraint/ 

"Then  two  magistrates  were  sent  on  board.  The  American 
Consul  went  also.  The  examination  was  commenced  on  Tuesday, 
the  gth,  and  was  continued  on  Wednesday,  the  loth,  and  then  post- 
poned until  Friday,  on  account  of  the  illness  of  Captain  Ensor. 


THE  CASE  OF  THE  CREOLE  251 

On  Friday  morning  it  was  abruptly,  and  without  any  explanation, 
terminated. 

"On  the  same  day,  a  large  number  of  boats  assembled  near  the 
Creole,  filled  with  colored  persons  armed  with  bludgeons.  They 
were  under  the  immediate  command  of  the  pilot,  who  took  the 
vessel  into  the  port,  who  was  an  officer  of  the  government,  and  a 
colored  man.  A  sloop  or  larger  launch  was  also  towed  from  the 
shore  and  anchored  near  the  brig.  The  sloop  was  filled  with  men 
armed  with  clubs,  and  clubs  were  passed  from  her  to  the  persons 
in  the  boats.  A  vast  concourse  of  people  were  collected  on  shore 
opposite  the  brig. 

"During  the  whole  time  the  officers  of  the  government  were  on 
board  they  encouraged  the  insubordination  of  the  slaves. 

"The  Americans  in  port  determined  to  unite  and  furnish  the 
necessary  aid  to  forward  the  vessel  and  negroes  to  New  Orleans. 
The  consul  and  the  officers  and  crews  of  two  other  American  ves- 
sels had,  in  fact,  united  with  the  officers,  men,  and  passengers  of 
the  Creole  to  effect  this.  They  were  to  conduct  her  first  to  Indian 
Quay,  Florida,  where  there  was  a  vessel  of  war  of  the  United 
States. 

"On  Friday  morning,  the  consul  was  informed  that  attempts 
would  be  made  to  liberate  the  slaves  by  force,  and  from  the  mate 
he  received  information  of  the  threatening  state  of  things.  The 
result  was,  that  the  attorney-general  and  other  officers  went  on 
board  the  Creole.  The  slaves,  identified  as  on  board  the  vessel 
concerned  in  the  mutiny,  were  sent  on  shore,  and  the  residue  of 
the  slaves  were  called  on  deck  by  direction  of  the  attorney-general, 
who  addressed  them  in  the  following  terms:  'My  friends,'  or,  'my 
men,  you  have  been  detained  a  short  time  on  board  the  Creole  for 
the  purpose  of  ascertaining  what  individuals  were  concerned  in 
the  murder.  They  have  been  identified,  and  will  be  detained. 
The  rest  of  you  are  free,  and  at  liberty  to  go  on  shore,  and  where- 
ever  you  please.' 

"The  liberated  slaves,  assisted  by  the  magistrates,  were  then 
taken  on  board  the  boats,  and  when  landed  were  conducted  by  a 
vast  assemblage  to  the  superintendent  of  police,  by  whom  their 
names  were  registered.  They  were  thus  forcibly  taken  from  the 
custody  of  the  master  of  the  Creole,  and  lost  to  the  claimants. 


252  MERCHANT  VESSELS 

"I  need  not  refer  to  authorities  to  show  that  slavery,  however 
odious  and  contrary  to  the  principles  of  justice  and  humanity, 
may  be  established  by  law  in  any  country;  and,  having  been  so 
established  in  many  countries,  it  cannot  be  contrary  to  the  law 
of  nations. 

"The  Creole  was  on  a  voyage,  sanctioned  and  protected  by  the 
laws  of  the  United  States,  and  by  the  law  of  nations.  Her  right 
to  navigate  the  ocean  could  not  be  questioned,  and  as  growing  out 
of  that  right,  the  right  to  seek  shelter  or  enter  the  ports  of  a 
friendly  power  in  case  of  distress  or  any  unavoidable  necessity. 

"A  vessel  navigating  the  ocean  carries  with  her  the  laws  of  her 
own  country,  so  far  as  relates  to  the  persons  and  property  on  board, 
and  to  a  certain  extent,  retains  those  rights  even  in  the  ports  of 
the  foreign  nations  she  may  visit.  Now,  this  being  the  state  of  the 
law  of  nations,  what  were  the  duties  of  the  authorities  at  Nassau 
in  regard  to  the  Creole  ?  It  is  submitted  the  mutineers  could  not 
be  tried  by  the  courts  of  that  island,  the  crime  having  been  com- 
mitted on  the  high  seas.  All  that  the  authorities  could  lawfully  do, 
was  to  comply  with  the  request  of  the  American  Consul,  and  keep 
the  mutineers  in  custody  until  a  conveyance  could  be  found  for 
sending  them  to  the  United  States. 

"The  other  slaves,  being  perfectly  quiet,  and  under  the  com- 
mand of  the  captain  and  owners,  and  on  board  an  American  ship, 
the  authorities  should  have  seen  that  they  were  protected  by  the 
law  of  nations;  their  rights  under  which  cannot  be  abrogated  or 
varied,  either  by  the  emancipation  act  or  any  other  act  of  the 
British  Parliament. 

"Blackstone,  4th  volume,  speaking  of  the  law  of  nations,  states: 
'Whenever  any  question  arises,  which  is  properly  the  object  of  its 
jurisdiction,  such  law  is  here  adopted  in  its  full  extent  by  the 
common  law.' 

"The  municipal  law  of  England  cannot  authorize  a  magistrate 
to  violate  the  law  of  nations  by  invading  with  an  armed  force  the 
vessel  of  a  friendly  nation  that  has  committed  no  offense,  and 
forcibly  dissolving  the  relations  which  by  the  laws  of  his  country 
the  captain  is  bound  to  preserve  and  enforce  on  board. 

"These  rights,  sanctioned  by  the  law  of  nations  —  viz. :  the  right 
to  navigate  the  ocean,  and  to  seek  shelter  in  case  of  distress  or 


THE  WILDENHUS  CASE  253 

other  unavoidable  circumstances,  and  to  retain  over  the  ship,  her 
cargo,  and  passengers,  the  laws  of  her  own  country  —  must  be 
respected  by  all  nations;  for  no  independent  nation  would  submit 
to  then:  violation. 

"Having  read  all  the  authorities  referred  to  in  the  arguments  on 
both  sides,  I  have  come  to  the  conclusion  that  the  conduct  of  the 
authorities  at  Nassau  was  hi  violation  of  the  established  law  of  na- 
tions, and  that  the  claimants  are  justly  entitled  to  compensation 
for  their  losses.  I  therefore  award  to  the  undermentioned  parties, 
their  assigns,  or  legal  representatives,  the  sums  set  opposite  their 
names,  due  on  the  i5th  of  January,  1855."  The  total  amount 
awarded  was  $110,330. 

(Extracted  and  condensed  from  Moore:  Digest  of  International 
Law,  vol.  n,  pp.  350-61.) 


THE  WILDENHUS  CASE 

The  Supreme  Court  of  the  United  States,  1886 

THIS  was  an  appeal  by  the  Belgian  Consul  for  the  States  of 
New  York  and  New  Jersey  hi  the  United  States  for  himself  as 
consul  in  behalf  of  Wildenhus  and  two  others  for  their  release 
upon  a  writ  of  habeas  corpus  from  the  custody  of  the  keeper  of  the 
jail.  The  facts  as  stated  in  the  application  recount  that  on  or 
about  October  6,  1886,  Wildenhus,  on  board  the  Belgian  steam- 
ship Nordland,  stabbed  one  Figens  and  inflicted  a  wound  from 
which  he  afterwards  died.  Wildenhus  and  Figens  were  both 
members  of  the  crew  and  subjects  of  Belgium,  where  they  had 
their  domicile.  -  The  Nordland  was  lying  moored  at  the  dock  of 
the  port  of  Jersey  City  at  the  time  and  the  whole  affray  took  place 
below  decks,  so  that  the  tranquillity  of  the  port  was  in  no  wise 
disturbed  or  injured  thereby.  All  the  witnesses  of  the  affray  were 
without  exception  members  of  the  crew.  The  application  further 
cited  certain  articles  from  the  Belgian  decree  of  March,  1857,  re- 
lating to  consuls,  authorizing  and  denning  the  jurisdiction  which 
they  might  exercise  on  Belgian  merchant  vessels  in  the  ports  and 
harbors  of  their  consular  districts. 

Article  n  of  a  convention  between  the  United  States  and  Bel- 


254  MERCHANT  VESSELS 

gium  "concerning  the  rights,  privileges,  and  immunities  of  con- 
sular officers,"  concluded  March  9,  1880,  and  proclaimed  by  the 
President  of  the  United  States,  March  i,  1881  (21  St.  123),  is  as 
follows:  "The  respective  consuls  general,  consuls,  vice-consuls, 
and  consular  agents  shall  have  exclusive  charge  of  the  internal 
order  of  the  merchant  vessels  of  their  nation,  and  shall  alone  take 
cognizance  of  all  differences  which  may  arise,  either  at  sea  or  in 
port,  between  the  captains,  officers,  and  crews,  without  excep- 
tion, particularly  with  reference  to  the  adjustment  of  wages  and 
the  execution  of  contracts.  The  local  authorities  shall  not  inter- 
fere, except  when  the  disorder  that  has  arisen  is  of  such  a  nature  as 
to  disturb  tranquillity  and  public  order  on  shore  or  in  the  port, 
or  when  a  person  of  the  country,  or  not  belonging  to  the  crew, 
shall  be  concerned  therein.  In  all  other  cases,  the  aforesaid  au- 
thorities shall  confine  themselves  to  lending  aid  to  the  consuls 
and  vice-consuls  or  consular  agents,  if  they  are  requested  by  them 
to  do  so,  in  causing  the  arrest  and  imprisonment  of  any  person 
whose  name  is  inscribed  on  the  crew  list,  whenever,  for  any  cause, 
the  said  officers  shall  think  proper." 

The  claim  of  the  consul  was  that,  by  the  law  of  nations  and  the 
provisions  of  this  treaty,  the  offense  with  which  Wildenhus  had 
been  charged  was  "solely  cognizable  by  the  authority  of  the  laws 
of  the  Kingdom  of  Belgium,"  and  that  the  State  of  New  Jersey 
was  without  jurisdiction  in  the  premises.  The  Circuit  Court  refused 
to  deliver  the  prisoners  to  the  consul,  and  remanded  them  to  the  cus- 
tody of  the  jailer.  To  reverse  that  decision  this  appeal  was  taken. 

Chief  Justice  Waite,  after  stating  the  facts  substantially  as 
recited  above,  continued,  delivering  the  opinion  of  the  court: 

"By  sections  751  and  753  of  the  Revised  Statutes  the  courts  of 
the  United  States  have  power  to  issue  writs  of  habeas  corpus  which 
shall  extend  to  prisoners  in  jail  when  they  are  in  'custody  in  viola- 
tion of  the  Constitution  or  a  law  or  treaty  of  the  United  States,' 
and  the  question  we  have  to  consider  is  whether  these  prisoners 
are  held  in  violation  of  the  provisions  of  the  existing  treaty  be- 
tween the  United  States  and  Belgium. 

"It  is  part  of  the  law  of  civilized  nations  that,  when  a  merchant 
vessel  of  one  country  enters  the  ports  of  another  for  the  purposes 
of  trade,  it  subjects  itself  to  the  law  of  the  place  to  which  it  goes, 


THE  WILDENHUS  CASE  255 

unless,  by  treaty  or  otherwise,  the  two  countries  have  come  to 
some  different  understanding  or  agreement.  .  .  . 

"From  experience,  however,  it  was  found  long  ago  that  it  would 
be  beneficial  to  commerce  if  the  local  government  would  abstain 
from  interfering  with  the  internal  discipline  of  the  ship,  and  the 
general  regulation  of  the  rights  and  duties  of  the  officers  and  crew 
towards  the  vessel,  or  among  themselves.  And  so  by  comity  it 
came  to  be  generally  understood  among  civilized  nations,  that  all 
matters  of  discipline  and  all  things  done  on  board  which  affected 
only  the  vessel  or  those  belonging  to  her  and  did  not  involve  the 
peace  or  dignity  of  the  country,  or  the  tranquillity  of  the  port, 
should  be  left  by  the  local  government  to  be  dealt  with  by  the 
authorities  of  the  nation  to  which  the  vessel  belonged  as  the  laws 
of  that  nation,  or  the  interests  of  its  commerce,  should  require. 
But  if  crimes  are  committed  on  board  of  a  character  to  disturb 
the  peace  and  tranquillity  of  the  country  to  which  the  vessel  has 
been  brought,  the  offenders  have  never,  by  comity  or  usage,  been 
entitled  to  any  exemption  from  the  operation  of  the  local  laws  for 
their  punishment,  if  the  local  tribunals  see  fit  to  assert  their  au- 
thority. Such  being  the  general  public  law  on  this  subject,  trea- 
ties and  conventions  have  been  entered  into  by  nations  having 
commercial  intercourse,  the  purpose  of  which  was  to  settle  and 
define  the  rights  and  duties  of  the  contracting  parties  with  respect 
to  each  other  in  these  particulars,  and  thus  prevent  the  incon- 
venience that  might  arise  from  attempts  to  exercise  conflicting 
jurisdictions." 

The  opinion,  after  a  brief  historical  review  of  the  various  pro- 
visions of  the  earlier  treaties,  continues: 

"The  form  of  the  provision  found  in  the  present  convention  with 
Belgium  first  appeared  in  a  convention  with  Austria  concluded 
in  1870,  art.  n  (17  St.  827),  and  it  is  found  now  in  substantially 
the  same  language  in  all  the  treaties  and  conventions  which  have 
since  been  entered  into  by  the  United  States  on  the  same  subject. 
See  the  conventions  with  the  German  Empire  in  1871,  art.  13 
(17  St.  927);  with  the  Netherlands  in  1878,  art.  n  (21  St.  668); 
with  Italy  in  1881,  art.  i  (22  St.  832);  with  Belgium  in  1881,  as 
stated  above;  and  with  Roumania,  the  same  year,  art.  u  (23  St. 
7H).  • 


256  MERCHANT  VESSELS 

"  It  thus  appears  that  at  first  provision  was  made  only  for  giving 
consuls  police  authority  over  the  interior  of  the  ship,  and  juris- 
diction in  civil  matters  arising  out  of  disputes  or  differences  on 
board,  that  is  to  say,  between  those  belonging  to  the  vessel.  Under 
this  police  authority  the  duties  of  the  consuls  were  evidently  con- 
fined to  the  maintenance  of  order  and  discipline  on  board.  This 
gave  them  no  power  to  punish  for  crimes  against  the  peace  of  the 
country.  In  fact,  they  were  expressly  prohibited  from  interfer- 
ing with  the  local  police  in  matters  of  that  kind.  The  cases  of  the 
Sally  and  the  Newton  are  illustrative  of  this  position.  That  of  the 
Sally  related  to  the  discipline  of  the  ship,  and  that  of  the  Newton 
to  the  maintenance  of  order  on  board.  In  neither  case  was  the 
disturbance  of  a  character  to  affect  the  peace  or  the  dignity  of 
the  country. 

"In  the  next  conventions  consuls  were  simply  made  judges  and 
arbitrators  to  settle  and  adjust  differences  between  those  on  board. 
This  clearly  related  to  such  differences  between  those  belonging  to 
the  vessel  as  are  capable  of  adjustment  and  settlement  by  judicial 
decision  or  by  arbitration,  for  it  simply  made  the  consuls  judges  or 
arbitrators  in  such  matters.  That  would  of  itself  exclude  all  idea 
of  punishment  for  crimes  against  the  state  which  affected  the  peace 
and  tranquillity  of  the  port;  but,  to  prevent  all  doubt  on  this 
subject,  it  was  expressly  provided  that  it  should  not  apply  to 
differences  of  that  character. 

"Next  came  a  form  of  convention  which  in  terms  gave  the  con- 
suls authority  to  cause  proper  order  to  be  maintained  on  board, 
and  to  decide  disputes  between  the  officers  and  crew,  but  allowed 
the  local  authorities  to  interfere  if  the  disorders  taking  place  on 
board  were  of  such  a  nature  as  to  disturb  the  public  tranquillity, 
and  that  is  substantially  all  there  is  in  the  convention  with 
Belgium  which  we  have  now  to  consider.  This  treaty  is  the  law 
which  now  governs  the  conduct  of  the  United  States  and  Belgium 
towards  each  other  in  this  particular.  Each  nation  has  granted  to 
the  other  such  local  jurisdiction  within  its  own  dominion  as  may 
be  necessary  to  maintain  order  on  board  a  merchant  vessel,  but 
has  reserved  to  itself  the  right  to  interfere  if  the  disorder  on  board 
is  of  a  nature  to  disturb  the  public  tranquillity. 

"The  treaty  is  part  of  the  supreme  law  of  the  United  States, 


THE  WTLDENHUS  CASE  257 

and  has  the  same  force  and  effect  in  New  Jersey  that  it  is  entitled  to 
elsewhere.  If  it  gives  the  consul  of  Belgium  exclusive  jurisdiction 
over  the  offense  which  it  is  alleged  has  been  committed  within  the 
territory  of  New  Jersey,  we  see  no  reason  why  he  may  not  enforce 
his  rights  under  the  treaty  by  writ  of  habeas  corpus  hi  any  proper 
court  of  the  United  States.  This  being  the  case,  the  only  im- 
portant question  left  for  our  determination  is  whether  the  thing 
which  has  been  done  —  the  disorder  that  has  arisen  —  on  board 
this  vessel  is  of  a  nature  to  disturb  the  public  peace,  or,  as  some 
writers  term  it,  the  'public  repose,'  of  the  people  who  look  to  the 
State  of  New  Jersey  for  their  protection.  If  the  thing  done  — 
'the  disorder,'  as  it  is  called  in  the  treaty  —  is  of  a  character  to 
affect  those  on  shore  or  in  the  port  when  it  becomes  known,  the 
fact  that  only  those  on  the  ship  saw  it  when  it  was  done  is  a  mat- 
ter of  no  moment.  Those  who  are  not  on  the  vessel  pay  no  special 
attention  to  the  mere  disputes  or  quarrels  of  the  seamen  while  on 
board,  whether  they  occur  under  deck  or  above.  Neither  do  they 
as  a  rule  care  for  anything  done  on  board  which  relates  only  to 
the  discipline  of  the  ship,  or  to  the  preservation  of  order  and  au- 
thority. Not  so,  however,  with  crimes  which  from  their  gravity 
awaken  a  public  interest  as  soon  as  they  become  known,  and 
especially  those  of  a  character  which  every  civilized  nation  con- 
siders itself  bound  to  provide  a  severe  punishment  for  when  com- 
mitted within  its  own  jurisdiction.  In  such  cases  inquiry  is  cer- 
tain to  be  instituted  at  once  to  ascertain  how  or  why  the  thing  was 
done,  and  the  popular  excitement  rises  or  falls  as  the  news  spreads, 
and  the  facts  become  known.  It  is  not  alone  the  publicity  of  the 
act,  or  the  noise  and  clamor  which  attends  it,  that  fixes  the  nature 
of  the  crime,  but  the  act  itself.  If  that  is  of  a  character  to  awaken 
public  interest  when  it  becomes  known,  it  is  a '  disorder,'  the  nature 
of  which  is  to  affect  the  community  at  large,  and  consequently  to 
invoke  the  power  of  the  local  government  whose  people  have  been 
disturbed  by  what  was  done.  The  very  nature  of  such  an  act  is  to 
disturb  the  quiet  of  a  peaceful  community,  and  to  create,  in  the 
language  of  the  treaty,  a  'disorder'  which  will  'disturb  tranquillity 
and  public  order  on  shore  or  in  the  port.'  The  principle  which 
governs  the  whole  matter  is  this:  Disorders  which  disturb  only 
the  peace  of  the  ship  or  those  on  board  are  to  be  dealt  with  ex- 


258  MERCHANT  VESSELS 

clusively  by  the  sovereignty  of  the  home  of  the  ship,  but  those 
which  disturb  the  public  peace  may  be  suppressed,  and,  if  need  be, 
the  offenders  punished,  by  the  proper  authorities  of  the  local 
jurisdiction.  It  may  not  be  easy  at  all  times  to  determine  to  which 
of  the  two  jurisdictions  a  particular  act  of  disorder  belongs.  Much 
will  undoubtedly  depend  on  the  attending  circumstances  of  the 
particular  case,  but  all  must  concede  that  felonious  homicide  is  a 
subject  for  the  local  jurisdiction;  and  that,  if  the  proper  authori- 
ties are  proceeding  with  the  case  in  a  regular  way,  the  consul  has 
no  right  to  interfere  to  prevent  it.  That,  according  to  the  petition 
for  the  habeas  corpus,  is  this  case. 

"This  is  fully  in  accord  with  the  practice  in  France,  where  the 
government  has  been  quite  as  liberal  towards  foreign  nations  in 
this  particular  as  any  other,  and  where,  as  we  have  seen  in  the 
cases  of  the  Sally  and  the  Newton,  by  a  decree  of  the  Council  of 
State,  representing  the  political  department  of  the  government, 
the  French  courts  were  prevented  from  exercising  jurisdiction. 
But  afterwards,  in  1859,  in  the  case  of  Jally,  the  mate  of  an  Ameri- 
can merchantman,  who  had  killed  one  of  the  crew  and  severely 
wounded  another  on  board  the  ship  in  the  port  of  Havre,  the 
Court  of  Cassation,  the  highest  judicial  tribunal  of  France,  upon 
full  consideration  held,  while  the  Convention  of  1853  was  ^  force, 
that  the  French  courts  had  rightful  jurisdiction,  for  reasons  which 
sufficiently  appear  in  the  following  extract  from  its  judgment: 
'  Considering  that  it  is  a  principle  of  the  law  of  nations  that  every 
state  has  sovereign  jurisdiction  throughout  its  territory;  consid- 
ering that,  by  the  terms  of  article  3  of  the  Code  Napoleon,  the 
laws  of  police  and  safety  bind  all  those  who  inhabit  French  terri- 
tory, and  that  consequently  foreigners,  even  transeuntes  [in 
transit],  find  themselves  subject  to  those  laws;  considering  that 
merchant  vessels  entering  the  port  of  a  nation  other  than  that 
to  which  they  belong  cannot  be  withdrawn  from  the  territorial 
jurisdiction,  in  any  case  in  which  the  interest  of  the  state  of 
which  that  port  forms  part  finds  itself  concerned,  without  danger 
to  good  order  and  to  the  dignity  of  the  government;  considering 
that  every  state  is  interested  in  the  repression  of  crimes  and 
offenses  that  may  be  committed  in  the  ports  of  its  territory, 
not  only  by  the  men  of  the  ship's  company  of  a  foreign  merchant 


THE  TORREY  CASE  259 

vessel  towards  men  not  forming  part  of  that  company,  but  even 
by  men  of  the  ship's  company  among  themselves,  whenever  the 
act  is  of  a  nature  to  compromise  the  tranquillity  of  the  port,  or 
the  intervention  of  the  local  authority  is  invoked,  or  the  act  con- 
stitutes a  crime  by  common  law  [droit  commun,  the  law  common 
to  all  civilized  nations],  the  gravity  of  which  does  not  permit  any 
nation  to  leave  it  unpunished,  without  impugning  its  rights  of 
jurisdictional  and  territorial  sovereignty,  because  that  crime  is 
in  itself  the  most  manifest  as  well  as  the  most  flagrant  violation  of 
the  laws  which  it  is  the  duty  of  every  nation  to  cause  to  be  res- 
pected hi  all  parts  of  its  territory.'  i  Ortolan,  Diplomatic  de  la 
Mer  (4th  ed.),  4S5>  456;  Sirey  (N.  S.)  1859,  p.  189. 
"The  judgment  of  the  Circuit  Court  is  affirmed." 
(Condensed  and  extracted  from  United  States  Reports,  vol.  120, 
p.  i  et  seq.) 


§29.  RIGHTS   OF  ALIENS 


THE  TORREY  CASE 

American-Venezuelan  Mixed  Claims  Commission, 

Dr.  Jose  de  J.  Paul,  Venezuelan  Commissioner  (for  the  com- 
mission) : 

"Charles  W.  Torrey  claims  from  the  Government  of  Venezuela 
the  sum  of  $10,000  for  damages  caused  by  unjust  arrest  at  the 
port  of  La  Guaira,  on  May  3,  1876,  and  for  personal  ill  treatment 
in  connection  therewith. 

"The  memorialist  bases  his  pretension  on  the  following 
facts: 

"Early  in  the  year  1876  he  went  to  Curacao  for  health  and 
pleasure.  Shortly  after  his  arrival  there  he  concluded  to  go  to 
Venezuela  to  see  the  country  and  visit  its  capital,  Caracas.  After 
remaining  in  Caracas  for  about  a  week,  he  concluded  to  return  to 
Curacao,  by  the  English  royal  mail  steamer  Severn.  On  the  9th  of 
May,  1876,  after  having  obtained  a  passport  with  all  the  neces- 
sary vists  by  the  authorized  officers  of  the  Venezuelan  Government 
in  Caracas,  he  started  for  La  Guaira,  where  he  intended  taking  the 


260  RIGHTS  OF  ALIENS 

steamer  Severn  back  to  Curasao.  With  him  at  the  same  time  were 
a  Mr.  Bartram  and  Dr.  Elbert  Nostrand,  also  citizens  of  the  United 
States.  The  steamer  was  lying  out  in  the  stream  and  the  three 
embarked  on  a  boat  belonging  to  said  steamer  to  reach  it.  While 
on  the  way  to  said  steamer  they  were  hailed  from  shore  and  or- 
dered back  and  commanded  to  report  to  the  civil  officer  in  charge 
at  La  Guaira.  This  officer  ordered  them  all  to  be  imprisoned  in 
the  common  jail.  Torrey  claims  that  he  was  lodged  in  a  cell  with 
many  low  prisoners,  his  cell  containing  no  other  accommodation 
or  furniture  than  a  common  table  and  a  set  of  wooden  stocks.  His 
request  to  remain  at  the  hotel  under  guard,  although  he  was  suf- 
fering from  an  attack  of  inflammatory  rheumatism,  was  arbitrarily 
refused,  and  he  was  taken  to  jail,  and  kept  in  said  prison  for  four 
hours.  He  was  released  through  the  immediate  exertions  of  the 
United  States  Consul  at  La  Guaira  and  the  United  States  repre- 
sentative at  Caracas,  and  he  took  the  steamer  bound  for  Curasao 
the  same  evening  at  7  o'clock. 

"Among  the  documents  presented  there  is  a  copy  of  the  com- 
munication addressed  on  the  i2th  of  June,  1885,  by  the  honorable 
Secretary  of  State,  T.  F.  Bayard,  to  Mr.  Torrey  in  reference  to 
his  claim,  which  hi  itself  is  sufficient  to  fix  the  appreciation  that 
this  Commission  must  make  about  the  fact  of  the  unjust  arrest 
suffered  by  Mr.  Torrey  for  a  few  hours  in  the  port  of  La  Guaira. 
Said  communication  reproduces  the  opinion  of  Mr.  Evarts,  Sec- 
retary of  State,  contained  in  a  letter  addressed  by  him  to  the  said 
claimant  on  April  5, 1877,  after  having  examined  the  voluminous 
diplomatic  correspondence  caused  by  this  affair.  This  opinion 
was  as  follows: 

"'Though  the  Department  would  have  preferred  that  the 
apology  for  your  arrest  should  have  come  directly  from  that 
functionary  [President  Guzman  Blanco],  the  fact  that  he 
ordered  his  chief  of  police  to  make  it  may  be  regarded  as 
sufficient.  Your  complaint  may,  however,  be  taken  into  con- 
sideration when  diplomatic  intercourse  with  Venezuela  shall 
be  resumed,  but  you  [Mr.  Torrey]  must  not  expect  that  this 
Department  will  authorize  a  demand  for  vindictive  damages.' 

"Mr.  Bayard,  in  the  same  communication,  adds: 


THE  TORRE Y  CASE  261 

"'Under  the  circumstances  of  the  case  as  herein  presented, 
further  diplomatic  intervention  in  your  behalf  is  thought  to 
be  neither  expedient  or  proper.  The  Department  must, 
therefore,  regard  the  matter  as  practically  closed,  unless  you 
can  show  to  it  that  the  apology  made  was  not  a  sufficient 
atonement  for  the  injury  done  to  you,  or  that  an  error  has 
accrued  to  your  prejudice  in  the  Department's  decision. 

"'This  decision  need  not,  however,  prejudice  your  ulti- 
mate rights  if  you  see  fit  to  present  and  support  a  claim  be- 
fore any  international  tribunal  which  may  hereafter  be  organ- 
ized to  take  cognizance  of  cases  arising  since  the  award  of  the 
late  Caracas  Commission/ 

"As  it  appears  from  the  above  communications,  and  as  it  is 
plainly  shown  by  the  voluminous  correspondence  between  the 
two  Departments  of  Foreign  Affairs  of  both  governments,  the  in- 
cident of  the  four  hours'  arrest  of  the  American  citizen,  Charles 
W.  Torrey,  in  the  port  of  La  Guaira  was  the  act  of  a  local  officer, 
and  was  due  to  special  circumstances  of  that  epoch,  in  which  act 
there  was  no  intention  to  hurt,  by  any  means,  the  person  of  an 
American  citizen,  and,  on  the  contrary,  the  same  gave  occasion 
for  the  President  of  the  Republic,  General  Guzman  Blanco,  as 
soon  as  he  knew  of  said  arrest  to  order  by  telegraph  that  the  prison- 
ers be  put  at  liberty,  thus: 

"'Gen.  J.  J.  Yepez:  Those  gentlemen  should  not  have 
taken  passage  to  Curasao  when  their  passports  were  for  the 
United  States  of  America,  but  I  have  reason  to  confide  in 
them;  thus,  I  expect  you  will  put  them  at  liberty,  stating  to 
them  that  you  are  sorry  for  what  has  happened.  The 
steamer  has  my  permission  to  leave  as  soon  as  those  gentle- 
men are  on  board.  GUZMAN  BLANCO.' 

"In  view  of  the  foregoing,  and  regarding  the  compensation  to 
be  given  in  this  case  as  limited  to  reparation  for  the  personal  in- 
convenience and  discomfort  suffered  by  the  claimant  during  his 
brief  detention,  an  award  will  be  made  in  the  sum  of  $250  United 
States  gold." 

(Venezuela  Arbitrations  of  1903,  prepared  by  J.  H.  Ralston 
[Washington,  1904],  pp.  162-64.) 


262  RIGHTS  OF  ALIENS 


THE  CADENHEAD   CASE 

American  and  British  Claims  Arbitration  Tribunal, 

THE  following  decision  was  rendered  in  this  case  May  i,  1914: 

"His  Britannic  Majesty's  Government  present  a  memorial  in 
this  case  'in  support  of  the  claim  respecting  the  killing  of  Eliza- 
beth Cadenhead,'  a  British  subject,  who  left  next  of  kin  her  sur- 
viving as  stated  in  annex  i  of  the  memorial,  all  of  whom  are 
British  subjects.  The  amount  claimed  as  compensation  for  the 
death  of  Miss  Cadenhead  is  twenty-five  thousand  dollars  ($25,000). 

"The  death  of  Miss  Cadenhead  occurred  under  the  following 
circumstances: 

"July  22,  1907,  Miss  Cadenhead  with  her  brother,  George  M. 
Cadenhead,  and  Katharine  Fordyce  Cadenhead  were  at  Sault 
Ste.  Marie,  a  city  in  the  State  of  Michigan,  United  States  of 
America;  it  was  about  3.30  P.M.  and  they  were  returning  to  the 
city  from  a  visit  to  a  military  post  named  Fort  Brady,  the  en- 
trance of  which  is  situated  on  a  public  highway,  called  South 
Street.  They  were  proceeding  along  the  sidewalk  of  South 
Street,  and  when  at  about  two  hundred  yards  from  the  en- 
trance of  the  fort,  Miss  Cadenhead  was  hit  by  a  rifle-shot  and 
instantly  killed. 

"The  shot  was  fired  by  a  private  soldier  belonging  to  Company 
M  of  the  Seventh  Infantry,  garrisoned  at  Fort  Brady,  and  was 
aimed  at  a  military  prisoner,  who  was  escaping  from  his  custody 
when  at  work  just  at  the  entrance  of  the  fort  on  South  Street,  by 
running  easterly  along  the  sidewalk  on  that  street  in  the  rear  of 
the  Cadenhead  party. 

"His  Britannic  Majesty's  Government  contend  that  this  sol- 
dier was  not  justified  in  firing  upon  an  unarmed  man  on  a  public 
highway,  that  he  acted  unnecessarily,  recklessly,  and  with  gross 
negligence,  and  that  compensation  should  be  paid  by  the  Govern- 
ment of  the  United  States  on  the  ground  that  under  the  circum- 
stances it  was  responsible  for  the  act  of  this  soldier. 

"The  question  whether  or  not  a  private  soldier  belonging  to 
the  United  States  Army  and  being  on  duty  acted  in  violation  of 
or  in  conformity  with  his  military  duty  is  a  question  of  municipal 


THE  CADENHEAD  CASE  263 

law  of  the  United  States,  and  it  has  been  established  by  the  com- 
petent military  court  of  the  United  States  that  he  acted  in  entire 
conformity  with  the  military  orders  and  regulations,  namely, 
section  365  of  the  Manual  of  Guard  Duty,  United  States  Army, 
approved  June  14,  1902. 

"The  only  question  for  this  tribunal  to  decide  is  whether  or 
not,  under  these  circumstances,  the  United  States  Government 
should  be  held  liable  to  pay  compensation  for  this  act  of  its 
agent. 

"It  is  established  by  the  evidence  that  the  aforesaid  orders 
under  which  this  soldier,  who  fired  at  the  escaping  prisoner,  acted, 
were  issued  pursuant  to  the  national  law  of  the  United  States  for 
the  enforcement  of  military  discipline,  and  were  within  the  com- 
petency and  jurisdiction  of  that  government. 

"It  has  not  been  shown  that  there  was  a  denial  of  justice,  or 
that  there  were  any  special  circumstances  or  grounds  of  exception 
to  the  generally  recognized  rule  of  international  law  that  a  for- 
eigner within  the  United  States  is  subject  to  its  public  law,  and 
has  no  greater  rights  than  nationals  of  that  country. 

"Furthermore,  no  evidence  is  offered  and  no  contention  is  made 
as  to  any  personal  pecuniary  loss  or  damage  resulting  to  the  rela- 
tives or  legal  representatives  of  the  unfortunate  victim  of  the  acci- 
dent, and  it  is  to  be  noted  that  this  is  a  pecuniary  claim  based  on 
alleged  personal  wrongs  of  nationals  of  Great  Britain,  as  appears 
from  its  inclusion  in  clause  3  of  the  schedule  of  claims  in  the 
Pecuniary  Claims  Convention,  under  which  it  is  presented. 

"Under  those  conditions  the  tribunal  is  of  the  opinion  that  in 
the  circumstances  of  this  case  no  pecuniary  liability  attaches  to 
the  Government  of  the  United  States. 

"It  should  be  said,  however,  that  it  may  not  have  been  alto- 
gether prudent  for  the  United  States  authorities  to  permit  pris- 
oners under  the  charge  of  a  single  guard,  to  be  put  at  work  just 
at  the  entrance  of  a  fort  on  a  public  highway  in  a  city,  and  order 
or  authorize  that  guard,  after  allowing  one  of  these  prisoners  to 
escape  under  these  circumstances,  to  fire  at  him,  while  running 
along  that  highway. 

"This  tribunal,  therefore,  ventures  to  express  the  desire  that 
the  United  States  Government  will  consider  favorably  the  pay- 


264  RIGHTS  OF  ALIENS 

ment  of  some  compensation  as  an  act  of  grace  to  the  representa- 
tives of  Miss  Cadenhead,  on  account  of  the  unfortunate  loss  of 
their  relative,  under  such  distressing  circumstances. 

"On  these  motives  the  tribunal  decides  that  with  the  above 
recommendation,  the  claim  presented  by  His  Britannic  Majesty's 
Government  in  this  case  be  disallowed. 

"The  President  of  the  Tribunal, 

"HENRI  FROMAGEOT. 

"WASHINGTON,  May  i,  1914" 

(American  Journal  of  International  Law  [1914],  vol.  vm,  pp. 
663-^65.) 


THE  NEW  ORLEANS  LYNCHING  (1891) 

ONE  of  the  difficulties  attendant  upon  the  adjustment  of  a  con- 
stitution like  that  of  the  United  States  is  the  occasional  failure  to 
coordinate  federal  powers  with  state  authority,  especially  in  the 
matter  of  treaty  obligations.  All  relations  with  foreign  states  are 
entrusted  to  the  Federal  Government.  To  it  alone  they  look  for 
faithful  execution  of  treaties  or  for  reparation  and  indemnity  in 
case  of  violation.  Foreign  governments  do  not,  officially,  know 
the  various  states  of  the  Union  as  states;  all  they  are  concerned 
with  is  the  political  entity,  "the  United  States."  On  the  other 
hand,  for  the  great  purposes  of  national  life,  such  as  civil  and 
criminal  law,  social  relations,  landholding,  and  so  on,  the  states 
are  supreme  —  the  federal  authority  does  not  control  them. 
Hence  the  hiatus  between  the  two  spheres  of  power  and  the  deli- 
cate situation  into  which  the  diplomacy  of  the  United  States  is 
sometimes  brought  by  reason  of  the  inability  of  foreign  statesmen 
to  understand  or  to  appreciate  the  working  of  a  federal  system  of 
government. 

A  notable  instance  of  this  difficulty  is  the  diplomatic  disagree- 
ment that  arose  out  of  the  affair  at  New  Orleans,  March  14,  1891, 
when  eleven  persons  of  Italian  origin,  some  of  them  Italian  sub- 
jects, were  taken  from  prison  and  lynched  by  a  mob,  without  any 
apparent  efforts  on  the  part  of  the  local  authorities  to  give  pro- 
tection. The  mob  included  many  prominent  citizens  and  was 
variously  estimated  at  from  6,000  to  8,000  in  number.  "In  fact," 


THE  NEW  ORLEANS  LYNCHING  265 

said  the  report  of  the  grand  jury,  "the  act  seemed  to  involve  the 
entire  people  of  the  parish  and  city  of  New  Orleans." 

It  would  seem  that,  for  a  quarter  of  a  century  preceding,  there 
had  been  in  New  Orleans  a  long  series  of  assassinations  which  had 
been  attributed  to  the  machinations  of  Italian  secret  societies. 
These  had  culminated  in  the  murder  of  the  chief  of  police  on  the 
night  of  October  15,  1890,  and  for  this  crime  a  number  of  Italians 
were  arrested.  While  they  were  in  prison  awaiting  trial,  their 
treatment  was  the  subject  of  diplomatic  complaint  on  the  part  of 
the  Italian  Minister  at  Washington,  but  on  the  representation  of 
Mr.  Elaine,  the  Secretary  of  State,  the  Governor  of  Louisiana 
took  steps  to  punish  offending  prison  officials,  at  the  same  time 
assuring  Mr.  Elaine  that  "the  nationality  of  the  prisoners  had 
nothing  whatever  to  do  with  the  outrages  committed  upon  them." 

The  conduct  of  the  trial  was  under  suspicion  from  the  first; 
but  public  feeling  became  thoroughly  incensed  when,  on  March 
13,  the  jury  reported  three  of  the  prisoners  not  guilty  and  in  the 
case  of  three  others  announced  its  inability  to  agree  upon  a  ver- 
dict. In  the  belief  that  there  had  been  a  failure  of  justice,  a  call 
was  issued  to  the  citizens  to  vindicate  the  law,  and  next  morning, 
in  response  to  the  call,  several  thousand  began  to  assemble  in  one 
of  the  public  squares.  Anticipating  danger,  the  Italian  Consul 
asked  the  governor  to  send  troops  to  protect  the  prisoners,  but 
the  latter  pleaded  that  he  was  powerless  to  act  without  request 
of  the  mayor,  who  at  the  time  could  not  be  found.  Before 
any  further  action  could  be  taken  by  the  consul,  the  mob  pro- 
ceeded to  the  prison  where  the  accused  were  confined,  and  shot  to 
death  eleven  of  them,  including  the  six  upon  whose  cases  the  jury 
had  made  report. 

Immediately  upon  receipt  of  the  news  of  the  massacre,  the 
Marquis  Rudini,  Italian  Minister  of  Foreign  Affairs,  instructed 
Baron  Fava,  the  Italian  Minister  at  Washington,  "to  denounce 
immediately  to  the  United  States  Government  the  atrocious  deed 
of  New  Orleans,  requesting  immediate  and  energetic  steps  to  re- 
press, to  protect  the  Italian  colony  endangered,  and  to  punish 
severely  the  guilty;"  and  next  day,  confirming  his  telegram  of 
March  14,  he  authorized  Baron  Fava,  in  the  event  of  any  agita- 
tion, "to  present  a  formal  protest,  with  the  reserve  of  asking  later 


266  RIGHTS  OF  ALIENS 

the  satisfaction  to  which  we  are  entitled."  Baron  Fava  inter- 
viewed Mr.  Elaine  in  the  sense  of  his  instructions  and  made  em- 
phatic protest  against  "the  unjustifiable  conduct  of  the  local 
authorities,  who  .  .  .  maintained  a  purely  passive  attitude  while 
the  massacre  of  the  Italians  was  going  on  in  the  prison." 

As  soon  as  the  protest  had  been  received,  Mr.  Elaine  sent  a 
communication  to  the  Governor  of  Louisiana,  reminding  him  that 
the  Treaty  of  1871  with  Italy  guaranteed  reciprocal  protection 
of  person  and  property  and  expressing  the  hope  of  the  President 
that  he  would  cooperate  with  him  "in  maintaining  the  obliga- 
tions of  the  United  States  towards  the  Italian  subjects  who  may 
be  within  the  perils  of  the  present  excitement  .  .  .  and  that  all 
offenders  against  the  law  may  be  promptly  brought  to  justice." 

Replying  on  the  2ist  of  March,  the  governor  assured  Mr.  Elaine 
of  the  cooperation  asked  for  and  informed  him  that  the  matter 
was  under  the  investigation  of  the  grand  jury.  He  added  that 
only  two  or  three  of  the  victims  were  Italian  subjects.  Baron 
Fava  admitted  that  his  representations  had  nothing  to  do  with 
any  who  were  American  citizens,  but  he  was  all  the  more  insistent 
that  those  responsible  for  the  murder  of  persons  under  the  pro- 
tection of  Italy  be  brought  to  justice. 

But  public  opinion  in  Italy  was  becoming  restive  at  the  delay 
and  this  impatience  was  reflected  in  the  action  of  the  Italian 
Government,  which,  according  to  the  American  Minister  at 
Rome,  was  taking  "a  course  more  extreme  than  would  otherwise 
perhaps  be  adopted."  On  March  24  Marquis  Rudini  telegraphed 
Baron  Fava  as  follows: 

"Our  requests  to  the  Federal  Government  are  very  simple. 
Some  Italian  subjects,  acquitted  by  the  American  magistrates, 
have  been  murdered  in  prison  while  under  the  immediate  protec- 
tion of  the  authorities.  Our  right,  therefore,  to  demand  and  ob- 
tain the  punishment  of  the  murderers  and  an  indemnity  for  the 
victims  is  unquestionable.  I  wish  to  add  that  the  public  opinion  in 
Italy  is  justly  impatient,  and,  if  concrete  provisions  are  not  at 
once  taken,  I  should  find  myself  in  the  painful  necessity  of  show- 
ing openly  our  dissatisfaction  by  recalling  the  minister  of  His 
Majesty  from  a  country  where  he  is  unable  to  obtain  justice." 
This  was  followed  next  day  by  another  cablegram  from  Rudini, 


THE  NEW  ORLEANS  LYNCHING  267 

in  which  he  stated  that  an  immediate  solution  was  indispensable. 
Baron  Fava  promptly  communicated  these  views  to  Mr.  Elaine 
and  requested  a  reply  without  further  delay.  Not  having  received 
one  by  March  31,  the  Italian  Minister  on  that  day  addressed  Mr. 
Blaine,  in  part,  as  follows: 

"...  The  reparation  demanded  by  the  Government  of  the 
King,  as  I  have  had  the  honor  to  inform  you  in  our  interviews 
held  during  the  last  few  days,  was  to  consist  of  the  following  points: 

"(i)  The  official  assurance  by  the  Federal  Government  that 
the  guilty  parties  should  be  brought  to  trial. 

"  (2)  The  recognition,  in  principle,  that  an  indemnity  is  due  to 
the  relatives  of  the  victims. 

"Your  Excellency  was  pleased  to  declare  to  me  that,  as  the 
Federal  Government  did  not  think  it  could  take  this  view  of  the 
case,  it  declined  to  take  the  two  aforesaid  demands  into  con- 
sideration. 

"Under  the  circumstances,  the  Government  of  His  Majesty, 
considering  that  the  legitimate  action  of  the  King's  Minister  at 
Washington  becomes  inefficacious,  has  ordered  me  to  take  my 
departure  on  leave.  .  .  ." 

On  the  minister's  departure,  the  business  of  the  legation  was 
left  in  the  hands  of  the  Marquis  Imperiali,  to  whom,  on  April  i, 
Mr.  Blaine  addressed  his  note  in  reply.  After  commenting  upon 
the  change  of  phrase  in  the  first  demand,  but  assuming  that  the 
same  thing  was  meant,  viz.,  the  punishment  of  the  murderers, 
Mr.  Blaine  again  pointed  out  that  the  Government  of  the  United 
States,  "so  far  from  refusing,  has  distinctly  recognized  the  prin- 
ciple of  indemnity  to  those  Italian  subjects  who  may  have  been 
wronged  by  a  violation  of  the  rights  secured  to  them  under  the 
treaty  with  the  United  States  concluded  February  26,  1871." 
In  conclusion,  Mr.  Blaine  gave  assurance  that  investigation  would 
be  thorough  but  not  hurried;  nor  would  the  Government  of  the 
United  States  "make  answer  to  any  demand  until  every  fact 
essential  to  a  correct  judgment  shall  have  been  fully  ascertained 
through  legal  authority." 

One  of  the  reasons  for  Mr.  Elaine's  delay  had  been  his  desire 
to  ascertain  whether  or  not  the  Italian  Government  was  cogni- 
zant of  the  dual  character  of  the  American  system  of  government. 


268  RIGHTS  OF  ALIENS 

On  March  31,  the  very  day  Baron  Fava  had  left  Washington, 
Mr.  Porter,  the  American  Minister  at  Rome,  called  at  the  Italian 
Foreign  Office  and,  in  a  conversation  with  the  Under-Secretary, 
found  that  there  was  no  misunderstanding  as  to  the  interrelation 
of  state  and  federal  powers,  but  that  there  was  widespread  sus- 
picion that  the  Government  of  the  United  States  was  not  acting 
with  sufficient  promptitude.  Mr.  Porter  pointed  out  that,  "as 
the  Federal  Government  could  not  exercise  direct  authority  over 
state  courts,  its  proceedings  could  not  be  as  prompt  as  might  be 
thought  desirable,"  but  he  expressed  confidence  that  all  treaty 
obligations  would  be  fulfilled,  and  added  that,  in  other  cases  of  a 
similar  nature,  "where  a  seeming  slowness  in  accomplishing  what 
was  desired  had  occasioned  temporary  impatience,  the  end  had 
fully  vindicated  the  good  faith  of  the  government  and  had  re- 
moved dissatisfaction." 

Mr.  Elaine's  note  of  April  i  was  answered  next  day.  The  Gov- 
ernment of  Italy  disclaimed  any  demand  for  punishment  apart 
from  due  legal  process,  but  insisted  that  judicial  proceedings  be 
instituted  at  once.  Satisfaction  was  also  expressed  that  the 
Federal  Government  recognized  "that  an  indemnity  is  due  to 
the  families  of  the  victims  in  virtue  of  the  treaty  in  force  between 
the  two  countries." 

Mr.  Elaine  made  no  further  reply  until  April  14,  when,  in  a 
note  of  some  length,  he  discussed  the  constitutional  difficulties 
involved  and  the  measure  of  a  government's  responsibilities  in 
the  case  of  mob  violence.  But  first  of  all  he  demurred  to  the  con- 
struction placed  upon  his  note  of  April  i ;  he  had  not  stated  that 
an  indemnity  was  due  in  virtue  of  the  treaty;  what  he  did  say 
was,  that  the  United  States  had  recognized  "the  principle  of  in- 
demnity to  those  Italian  subjects  who  may  have  been  wronged 
by  a  violation  of  treaty  rights,"  but  that  it  was  yet  to  be  estab- 
lished whether  the  treaty  had  been  violated.  Ordinarily,  repara- 
tion for  mob  violence  is  to  be  sought  in  the  courts,  which  are  open 
to  citizen  and  resident  alien  alike,  except  that  the  latter  has  the 
additional  privilege  of  seeking  judicial  remedy  in  the  federal 
courts.  But  no  claim  for  indemnity  can  be  made  against  the  gov- 
ernment unless  the  authorities  of  the  government  can  be  shown 
to  have  been  in  collusion  with  the  mob  or  grossly  remiss  in  their 


THE  NEW  ORLEANS  LYNCHING  269 

duty.  "No  government,"  said  Mr.  Elaine,  "is  able,  however 
high  its  civilization,  .  .  .  however  prompt  and  inflexible  its  crim- 
inal administration,  to  secure  its  own  citizens  against  violence 
promoted  by  individual  malice  or  by  sudden  popular  tumult. 
.  .  .  Foreign  residents  are  not  made  a  favored  class.  .  .  .  The 
foreign  resident  must  be  content  ...  to  share  the  same  redress 
that  is  offered  by  the  law  to  the  citizen,  and  has  no  just  cause  of 
complaint  or  right  to  ask  the  interposition  of  his  country  if  the 
courts  are  equally  open  to  him  for  the  redress  of  his  hi  juries." 

However,  Mr.  Elaine  admitted  that  the  circumstances  of  the 
massacre  at  New  Orleans  conformed,  in  all  probability,  to  the 
exception  stated,  namely,  that  the  officials  had  been  in  connivance 
with  the  mob.  He  stated  that  the  facts  were  still  under  investi- 
gation by  the  Attorney-General,  who  had  been  asked  for  an  opinion 
as  to  whether  the  Federal  Government  could  maintain  a  criminal 
prosecution  against  the  murderers.  Should  it  appear  that  the 
State  of  Louisiana  alone  could  act,  the  President,  it  was  pointed 
out,  could  "do  no  more  than  to  urge  upon  the  state  officers  the 
duty  of  promptly  bringing  the  offenders  to  trial."  Failing  action 
on  the  part  of  the  state  courts,  the  United  States  would  then  feel  it 
incumbent  upon  itself  to  find  other  means  of  redress,  and  the 
President  "would,  under  such  circumstances,  feel  that  a  case  was 
established  that  should  be  submitted  to  the  consideration  of 
Congress  with  a  view  to  the  relief  of  the  families  of  the  Italian 
subjects  who  had  lost  their  lives  by  lawless  violence." 

But  the  misunderstanding  persisted  in  spite  of  these  assurances. 
The  Italian  Government  admitted  that  the  payment  of  indemnity 
was  conditional  upon  proof  of  the  violation  of  the  treaty,  but  in 
their  opinion,  such  proof  was  complete:  "Italian  subjects  acquitted 
by  American  juries  were  massacred  in  prisons  of  the  State  without 
measures  being  taken  to  defend  them."  "We  have  affirmed," 
added  Marquis  Rudini,  "and  we  again  affirm  our  right.  Let  the 
Federal  Government  reflect  upon  its  side  if  it  is  expedient  to  leave 
to  the  mercy  of  each  state  of  the  Union,  irresponsible  to  foreign 
countries,  the  efficiency  of  treaties  pledging  its  faith  and  honor  to 
entire  nations." 

On  May  5,  the  grand  jury  of  the  District  Court  of  New  Orleans 
reported  that,  in  the  matter  of  the  New  Orleans  massacre,  "the 


270  RIGHTS  OF  ALIENS 

thorough  examination  of  the  subject  has  failed  to  disclose  the  nec- 
essary facts  to  justify  the  grand  jury  in  presenting  indictments." 
Thus,  in  view  of  the  necessity  for  legal  process  in  the  punishment  of 
crime  as  well  as  of  the  independence  of  the  states  in  criminal  juris- 
diction, the  Federal  Government  was  powerless  to  bring  the  guilty 
parties  to  trial. 

Nothing  further  had  been  done  toward  a  settlement,  when,  in 
his  annual  message  of  December  9,  1891,  the  President  called  the 
attention  of  Congress  to  the  unfortunate  diplomatic  situation  in 
which  the  government  found  itself.  "The  federal  officers  and 
courts,"  he  said,  "have  no  power  in  such  cases  to  intervene  either 
for  the  protection  of  a  foreign  citizen  or  for  the  punishment  of 
his  slayers."  In  his  opinion,  therefore,  "the  officers  of  the  State 
charged  with  police  and  judicial  powers  in  such  cases  must,  in  the 
consideration  of  international  questions  growing  out  of  such  in- 
cidents, be  regarded  in  such  sense  as  federal  agents  as  to  make  this 
government  answerable  for  their  acts  in  cases  where  it  would  be 
answerable  if  the  United  States  had  used  its  constitutional  power 
to  define  and  punish  crimes  against  treaty  rights."  As  a  permanent 
safeguard  against  similar  situations  in  future,  he  held  it  to  be 
within  the  competence  of  Congress  "to  make  offenses  against 
the  treaty  rights  of  foreigners  domiciled  in  the  United  States 
cognizable  in  the  federal  courts." 

Though  no  steps  were  taken  to  enact  any  general  remedial  legis- 
lation, the  diplomatic  incident  with  Italy  was  closed,  when,  on 
April  12,  1892,  Mr.  Elaine,  under  instructions  from  the  President, 
offered,  and  the  Government  of  Italy  accepted,  an  indemnity  of 
125,000  francs  "without  prejudice  to  the  judicial  steps  which  it 
may  be  proper  for  the  parties  to  take."  Thereupon,  the  Italian 
Minister  returned  to  Washington  and  diplomatic  relations  were 
fully  resumed. 

(Foreign  Relations  of  the  United  States,  1891,  pp.  658-728.) 


CONNELL'S  CASE   (1888) 

WITH  regard  to  the  complaint  of  E.  R.  Connell,  a  citizen  of  the 
United  States  residing  at  Batavia,  as  agent  for  an  American  house, 


CONNELL'S  CASE  271 

that  he  was  subjected  to  compulsory  semiweekly  drills,  which 
greatly  interfered  with  his  business  duties,  the  American  Minister 
at  The  Hague  was  instructed  as  follows: 

"It  is  desirable  in  the  first  place  to  point  out  that  .  .  .  neither 
Mr.  Connell  nor  this  Department  has  questioned  his  treatment  as 
being  exceptional  hi  any  way  or  as  being  different  from  what  was 
required  by  the  local  law  of  Batavia. 

"The  question  presented  by  Mr.  Connell  and  by  this  Depart- 
ment for  the  consideration  of  the  Netherlands  Government  is 
whether  or  not  the  existence  of  such  a  local  law  is  justifiable  under 
international  usage.  .  .  . 

"It  appears  that  the  ' schuttery '  is  a  local  corps  in  which  all  resi- 
dents of  Batavia,  whether  the  subjects  of  the  Netherlands  Gov- 
ernment or  not,  are  compulsorily  enrolled,  and  that  that  guard 
may  be  called  upon  to  take  part  not  only  in  the  defense  of  Bata- 
via, but  also  in  expeditions  to  repress  disorder  in  neighboring 
provinces. 

"It  is  well  settled  by  international  law  that  foreigners  tempo- 
rarily resident  in  a  country  cannot  be  compelled  to  enter  into  its 
permanent  military  service.1  It  is  true  that  in  times  of  social  dis- 
turbance or  of  invasion  then*  services  in  police  or  home  guards 
may  be  exacted,  and  that  they  may  be  required  to  take  up  arms  to 
help  in  the  defense  of  their  place  of  residence  against  the  invasion 
of  savages,  pirates,  etc.,  as  a  means  of  warding  off  some  great  public 
calamity  by  which  all  would  suffer  indiscriminately.  The  test  in 
each  case,  as  to  whether  a  foreigner  can  properly  be  enrolled  against 
his  will,  is  that  of  necessity.  Unless  social  order  and  immunity 
from  attack  by  uncivilized  tribes  cannot  be  secured  except 
through  the  enrollment  of  such  a  force,  a  nation  has  no  right  to 
call  upon  foreigners  for  assistance  against  their  will. 

"There  is  no  evidence  in  the  possession  of  this  Department 
tending  to  show  that  the  condition  of  affairs  at  Batavia  is  such  as 
to  bring  the  question  within  the  fair  meaning  of  the  rule  as  I  have 
stated  it,  ...  and,  short  of  some  such  condition  of  affairs  as 
this,  it  is  the  belief  of  this  government  that  the  general  principles 

1  With  regard  to  the  duration  of  his  residence  at  Batavia,  Mr.  Connell  said:  "I 
do  not  pretend  to  be  a  temporary  resident  only,  my  expectation  being  to  remain  here 
for  an  extended  period" 


272  RIGHTS  OF  ALIENS 

of  international  law  would  not  warrant  the  Netherlands  Govern- 
ment in  resorting  to  so  extreme  a  measure. 

"The  Government  of  the  United  States  has  always  favored  the 
residence  of  its  citizens  abroad  for  commercial  purposes  connected 
with  this  country.  Such  a  residence  is  conducive  to  the  interests 
not  only  of  the  United  States,  but  also  of  the  country  in  which 
such  agents  may  temporarily  reside. 

"Although  the  right  of  the  Dutch  Government  to  expel  foreign- 
ers from  their  control  cannot  be  disputed,  the  Government  of  the 
United  States  cannot  but  regard  it  as  a  somewhat  inhospitable 
manner  of  dealing  with  strangers  who  reside  in  the  Dutch  provinces 
for  the  purpose  of  commerce  to  insist  as  a  condition  of  their  resi- 
dence that  they  shall  endure  compulsory  military  service,  which 
may,  under  some  circumstances,  become  extremely  dangerous  and 
onerous. 

"You  may  bring  this  matter  verbally  to  the  attention  of  the 
Minister  of  Foreign  Affairs,  and  explain  to  him  in  a  frank  and 
friendly  manner  the  views  expressed  in  this  instruction  and  im- 
press upon  him  that  we  do  not  regard  the  position  of  Mr.  Connell 
as  in  any  way  exceptional." 

The  American  Minister  at  The  Hague  replied  March  3,  1888: 

"After  having  carefully  considered  your  instruction,  I  called 
upon  the  Minister  of  Foreign  Affairs  and  presented  to  him  ver- 
bally and  in  a  frank  and  friendly  manner  the  views  expressed  by 
you. 

"The  Minister  of  Foreign  Affairs  said  that  in  his  opinion  and 
in  the  opinion  of  his  government  there  was  nothing  in  the  law  or 
its  operation  which'  in  any  way  conflicted  with  international  usage, 
and  that  it  would  not  therefore  be  possible  for  him  to  enter  into  any 
investigation  of  the  law  or  its  operation  with  a  view  to  its  modifi- 
cation. 

"His  Excellency  urged  that  the  services  exacted  were  simply  of 
a  police  nature  for  mutual  protection,  and  as  the  organization  had 
never  at  any  time  been  mobilized  or  mustered  into  the  regular 
military  service  of  the  country,  or  such  an  event  contemplated, 
such  an  emergency  could  not  be  discussed. 

"His  Excellency  did  not  contend  that  the  remoteness  of  the 
colony  from  the  home  government  prevented  it  from  being  com- 


THE  CASE  OF  MRS.  HONEY  273 

pletely  administered  within  the  range  of  international  law,  nor 
did  His  Excellency  intimate  that  the  disturbed  state  of  affairs  in 
Atcheen  had  in  any  way  affected  the  condition  of  affairs  at 
Batavia. 

"Without  citing  any  circumstance  or  condition  in  justification 
of  the  provisions  of  the  law,  His  Excellency  concluded  by  saying 
that  a  similar  law  existed  in  the  Netherlands,  and  that  such  laws 
were  regarded  by  this  government  as  necessary,  and  not  in  conflict 
with  international  usage. 

"In  my  opinion  there  is  no  excuse  for  the  contention  that  it  is 
a  case  of  necessity. 

"The  whole  Dutch  schuttery  system  is  only  machinery  for 
effecting  a  saving  of  national  expenditure,  and  has  no  positive 
value  for  the  government  beyond  its  economical  features. 

"It  further  seems  to  me  not  only  illogical,  but  absolutely  irra- 
tional, for  this  government,  while  providing  that  citizenship  must 
be  vacated  by  Dutch  subjects  who  render  foreign  military  service 
without  the  consent  of  this  government,  to  resolutely  insist  upon 
considering  all  foreign  residents  within  its  jurisdiction  as  liable  to 
compulsory  military  service." 

On  March  26,  1888,  the  Department  of  State  made  reply  as 
follows:  "Your  observations  on  the  Dutch  Minister's  views  point 
out  very  clearly  the  anomaly  in  the  Dutch  practice,  but  as  Mr. 
Connell  has  withdrawn  the  basis  of  our  complaint,  the  Depart- 
ment, while  not  assenting  to  the  position  of  the  Dutch  Govern- 
ment as  to  the  principle  involved,  is  willing  that  the  question  may 
rest  until  another  case  revives  it." 

(Moore:  Digest  of  International  Law,  vol.  iv,  pp.  61-63.) 


THE  CASE  OF  MRS.  HONEY  (1887) 

IN  1887  the  city  authorities  of  Frankfort-on-the-Main  sought 
to  levy  an  income  tax  on  Mrs.  Samuel  R.  Honey,  the  wife  of  a 
citizen  of  the  United  States.  It  appeared  that  Mrs.  Honey  was 
making  an  extended  but  temporary  sojourn  at  Frankfort  with  her 
daughter,  who  was  attending  the  school  of  music,  and  that  she 
received  a  monthly  allowance  from  her  husband  to  defray  her 
own  and  her  daughter's  expenses.  Under  the  circumstances  the 


274  RIGHTS  OF  ALIENS 

authorities  came  to  the  conclusion  that  she  was  not  subject  to 
the  tax,  but  proceeded  to  levy  an  income  tax  on  Mr.  Honey,  on 
the  theory  that,  as  his  wife  and  daughter  occupied  a  dwelling 
there,  he  had  a  domicile  at  Frankfort.  It  appeared  that  Mrs. 
Honey  rented  furnished  rooms,  and  that  all  the  furniture  in  them 
belonged  to  the  landlord.  Mr.  Honey  was  a  citizen  of  the  United 
States  and  was  domiciled  at  Newport,  Rhode  Island,  where  he 
pursued  the  profession  of  the  law.  He  stated  that  the  money 
which  he  sent  to  his  wife  was  derived  almost  exclusively  from  the 
proceeds  of  his  professional  income,  and  that  she  had  no  income 
or  estate  of  her  own.  Mr.  Honey  had  never  resided  in  Germany 
and  had  no  property,  business,  or  income  there.  It  appeared  that 
in  September,  1887,  the  Prussian  authorities  also  sought  to  levy 
a  state  income  tax  upon  Mr.  Honey.  These  levies  were  the  sub- 
ject of  discussion  between  the  Consul-General  of  the  United 
States  at  Frankfort-on-the-Main  and  the  local  authorities,  and 
the  matter  was  ultimately  communicated  by  the  legation  of  the 
United  States  at  Berlin  to  the  German  Foreign  Office,  hi  order 
that  it  might  be  laid  before  the  Prussian  Minister  of  Finance. 
The  Prussian  Minister  of  Finance  subsequently  directed  that  the 
assessment  of  the  state  income  tax  should  be  discontinued  and 
the  amount  already  paid  refunded.  A  similar  conclusion  was 
reached  in  regard  to  the  communal  tax. 

(Taken  textually  from  Moore:  Digest  of  International  Law,  vol. 
n,  pp.  60-61.) 


CHAPTER   VI 

THE  REGULATION  OF  COMMERCE,  TRAVEL, 
AND   SOJOURN 


§  30.    REGULATION  OF  IMMIGRATION  AND  SOJOURN 


THE  CASE  OF  CHARALAMBIS   (1903) 

SOTIRIOS  S.  LONTOS  CHARALAMBIS,  a  Greek  subject,  arrived 
at  New  York,  May  6,  1903,  as  a  first-cabin  passenger  on  the 
steamer  Trave.  Questioned  by  the  immigration  officials,  he  stated 
that  he  expected  to  act  as  chief  accountant  for  the  Greek  Currant 
Company  (a  Greek  corporation),  at  a  salary  of  one  thousand  dol- 
lars a  year,  in  a  branch  which  was  to  be  established  in  the  United 
States.  He  was  ordered  to  be  deported  as  a  contract  laborer.  On 
a  rehearing,  before  a  special  board  of  inquiry,  it  appeared  that 
Lontos  was  a  cousin  of  the  chairman  of  the  directors  of  the  Greek 
Currant  Company  and  a  nephew  of  the  president  of  the  National 
Bank  of  Greece,  who  was  the  largest  stockholder  in  the  company; 
that,  by  reason  of  these  facts,  his  position  was  peculiarly  confiden- 
tial and  representative;  and  that  he  was  also  to  make  a  special 
study  of  the  banking  business  in  the  United  States.  The  chairman 
of  the  special  board  expressed  the  view  that  the  contract-labor 
law  did  not  apply  to  such  a  case,  but  this  view  did  not  prevail  and 
the  order  of  deportation  was  reaffirmed.  The  Secretary  of  the 
Treasury  on  appeal,  May  29,  affirmed  this  decision,  and  the  Act- 
ing Secretary,  on  June  2,  refused  a  rehearing.  On  the  next  day 
the  writ  of  habeas  corpus  was  obtained,  Lontos  remaining  in  the 
custody  of  his  counsel.  The  court,  however,  declined  to  review 
the  decision  of  the  special  board,  and  an  appeal  was  then  taken 
to  the  Supreme  Court.  Meanwhile,  the  Greek  Government  had 
strongly  and  repeatedly  protested.  In  January,  1905,  after  the 


276        REGULATION  OF  IMMIGRATION  AND  SOJOURN 

case  was  placed  on  the  day  calendar  of  the  Supreme  Court,  Mr. 
Hayes  agreed  to  move  for  a  dismissal  of  the  appeal,  on  an  assur- 
ance from  the  Department  of  Justice  that  his  client  would  be  ad- 
mitted. An  order  of  admission  was  made  by  the  Secretary  of 
Commerce  and  Labor,  January  21,  1905.  The  appeal  was  dis- 
missed. (196  U.S.  643.)  The  proposed  agency  of  the  Greek  Cur- 
rant Company  was  established  in  New  York,  and  has  been  con- 
ducting, as  Mr.  Hayes  states,  a  large  and  successful  wholesale 
business. 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  iv,  pp. 
179-80.) 


THE  CASE  OF  ROUSSEL   (1909) 
The  French  Ambassador  to  the  Secretary  of  State 

[Translation] 

FRENCH  EMBASSY, 
Washington,  November  27,  igog. 

Mr.  Secretary  of  State:  I  have  the  honor  to  draw  Your  Excel- 
lency's kind  attention  to  the  situation  of  a  young  Frenchman,  Mr. 
Charles  Roussel,  who  arrived  on  the  steamship  Caroline,  of  the 
Compagnie  Generate  Transatlantique,  on  the  i8th  instant  and 
was  denied  admission  into  the  United  States  by  the  Immigration 
Service. 

The  young  man  formerly  lived  at  Providence,  Rhode  Island, 
with  his  parents.  Having  returned  to  France  to  perform  his  mili- 
tary service,  as  required  by  law,  he  was  discharged  from  the  ranks 
on  account  of  his  weak  constitution  and  came  back  to  the  United 
States,  his  traveling  expenses  being,  under  the  regulation,  paid 
both  ways  by  the  Ministry  of  War  of  the  Republic. 

The  Consul-General  of  France  at  New  York,  hearing  that 
Roussel  was  detained  at  Ellis  Island,  wrote  to  Mr.  Williams, 
Commissioner  of  Immigration,  to  tell  him  how  the  young  man 
was  situated  and  inform  him  that  the  consulate-general  was  ready 
to  pay  his  way  to  Providence.  Mr.  Lanel,  who  was  then  advised 
that  Mr.  Roussel  was  excluded  on  account  of  his  weak  constitu- 
tion and  was  about  to  be  sent  back  to  France,  immediately  wrote 
again  to  the  commissioner  to  ask  that  his  deportation  be  deferred. 


THE  CASE  OF  ROUSSEL  277 

This  young  man's  case  is  all  the  more  interesting  as  he  has  no 
relations  in  France,  and  his  parents  reside  in  Providence.  I  ven- 
ture to  hope  that,  taking  this  situation  into  account,  Your  Ex- 
cellency will  kindly  use  your  good  offices  with  the  proper  depart- 
ment in  behalf  of  my  fellow  countryman,  who,  if  the  decision  of 
the  Immigration  Service  were  maintained,  would  find  himself 
separated,  resourceless,  from  his  people,  for  performing  his  duty 
and  obeying  the  laws  of  the  Republic. 

Be  pleased,  etc.,  JUSSERAND. 

The  French  Ambassador  to  the  Secretary  of  State 

[Translation] 

FRENCH  EMBASSY, 
Washington,  November  29,  /pop. 

Mr.  Secretary  of  State:  Our  consuls  in  the  United  States  report 
to  me  that  for  some  time  past  the  Federal  Immigration  Service 
has  been  opposing  difficulties  to  French  soldiers,  who  have  been 
released  from  the  military  service  after  its  completion  and  return 
to  their  homes  in  the  United  States.  Unless  provided  with  a  sum 
of  two  hundred  and  fifty  francs,  they  are  detained  and  threatened 
with  deportation  to  France. 

I  venture  to  bring  Your  Excellency's  notice  to  the  fact  that,  in 
the  first  place,  the  persons  concerned  were  residents  of  the  United 
States  before  going  to  France  to  perform  then:  military  service,  . 
and,  in  the  second  place,  our  consuls  are  required  by  law  to  pay 
the  way  of  these  young  men  to  their  residence  hi  the  United  States, 
no  matter  how  distant  it  may  be. 

I  should  be  very  thankful  to  Your  Excellency  if  you  would 
kindly  draw  to  this  situation  the  favorable  attention  of  the  proper 
federal  authorities,  with  the  remark  that  it  could  hardly  be  con- 
sistent with  law  and  logic  to  consider  returning  foreigners,  who 
resided  in  the  United  States  before  going  to  their  country  there 
to  perform  their  military  service  out  of  a  sense  of  duty,  as  immi- 
grants, and  treat  them  as  though  they  had  not  already  been  ad- 
mitted, once  for  all,  to  residence  in  this  country. 

Be  pleased,  etc.,  JUSSERAND. 


278        REGULATION  OF  IMMIGRATION  AND  SOJOURN 
The  French  Ambassador  to  the  Secretary  of  State 

[Translation] 

FRENCH  EMBASSY, 
Washington,  December  14,  1909. 

Mr.  Secretary  of  State:  Your  Excellency  was  so  good  as  to  ad- 
vise me,  in  your  letter  of  the  yth  instant,  that  you  had  forwarded 
to  the  Department  of  Commerce  and  Labor  my  request  on  behalf 
of  a  young  Frenchman,  Charles  Roussel,  whom  the  authorities 
of  the  Immigration  Service  will  not  allow  to  land  in  New  York. 

I  have  just  been  informed  that  the  said  authorities  have  sent 
the  young  man  back  to  France  without  waiting  for  the  outcome 
of  my  request.  My  government  will  surely  be  extremely  sorry  to 
hear  of  this  decision.  .  .  . 

Your  Excellency  will  surely  consider  these  provisions  which 
may  work  so  much  hardship,  and  to  which  I  took  the  liberty  of 
drawing  your  attention  in  a  second  letter,  dated  November  29, 
to  be  inconsistent  with  the  true  intent  of  the  legislator.  I  should 
be  very  thankful  to  you  if  you  would  acquaint  me  with  your  views 
in  this  respect  and  let  me  know  whether  the  law  really  is  that  an 
alien  once  admitted  in  the  United  States  may  thereafter  be  ex- 
cluded if  he  leaves  the  country,  even  for  the  performance  of  a  duty 
held  to  be  sacred  the  world  over  and  if  his  health  becomes  un- 
paired. 

Be  pleased  to  accept,  etc.,  JUSSERAND. 

The  Acting  Secretary  of  State  to  the  French  Ambassador 

DEPARTMENT  OF  STAIE, 
Washington,  December  21,  /pop. 

Excellency:  In  further  reply  to  Your  Excellency's  note  of  the 
27th  ultimo,  and  with  reference  also  to  your  note  of  the  i4th  in- 
stant, in  regard  to  the  case  of  one  Charles  Roussel,  a  French 
citizen,  who  recently  returned  to  this  country,  but  was  denied  ad- 
mission, notwithstanding  the  fact  that  he  had  certain  interests 
here,  I  have  now  the  honor  to  advise  you  of  the  result  of  this  De- 
partment's communication  to  the  Department  of  Commerce  and 
Labor  of  Your  Excellency's  note  of  November  27. 

It  appears  that  this  case  came  before  the  Department  of  Com- 


THE  CASE  OF  ROUSSEL  279 

merce  and  Labor  in  connection  with  an  application  for  admission 
under  bond,  on  November  24,  1909.  A  medical  certificate  was 
rendered  showing  Mr.  Roussel  to  be  afflicted  with  "chronic  in- 
flammation connective  tissue  neck  with  suppuration  and  sinus, 
which  affects  ability  to  earn  a  living."  It  further  appears  from 
the  statement  made  by  the  Acting  Secretary  of  Commerce  and 
Labor,  that  the  passage  of  this  alien  was  paid  by  the  French  Gov- 
ernment pursuant  to  a  statute  calling  for  such  payment  when  a 
native  of  France  returns  thither  for  military  service.  Mr.  Roussel 
was  totally  destitute  of  money  and,  although  his  father  appeared 
as  a  witness  in  his  behalf,  evidence  was  not  submitted  to  overcome 
the  presumption  of  his  likelihood  to  become  a  public  charge.  Con- 
sequently, the  application  was  denied  and  the  applicant  was 
deported. 

I  may  add  that  the  Third  Assistant  Secretary  of  State,  in  con- 
sultation with  the  Acting  Secretary  of  Commerce  and  Labor, 
orally  pointed  out  that  this  case  seemed  to  be  one  involving  par- 
ticular hardship.  The  Acting  Secretary  of  Commerce  and  Labor 
could,  however,  only  reiterate  the  statement  made  in  his  corre- 
spondence with  this  Department,  that  under  the  law  an  alien  re- 
turning to  this  country  must  be  subjected  to  the  same  treatment 
as  that  attending  his  initial  immigration.  The  Department  re- 
grets that,  in  view  of  the  provisions  of  law  applying  in  such  cases, 
no  other  course  was  open  to  the  Department  of  Commerce  and 
Labor  than  to  order  the  deportation  of  Roussel. 

I  have  also  the  honor  hi  this  relation  to  refer  to  Your  Excel- 
lency's note  of  November  29  last,  wherein  you  discussed  the 
general  subject  of  French  citizens  who  have  emigrated  to  the 
United  States  and  later  returned  to  then*  homes  in  France  for  the 
purpose  of  performing  military  duty,  upon  the  conclusion  of  which 
they  again  emigrated  to  the  United  States.  Your  Excellency  is  of 
opinion  that,  in  such  event,  they  should  be  admitted  without 
question. 

Your  Excellency's  note  was  communicated  to  the  Secretary  of 
Commerce  and  Labor,  who,  with  reference  to  the  comments  made 
therein,  advises  me  as  follows: 

A  reference  to  the  act  of  February  20,  1907,  will  indicate  that 
the  administrative  officers  of  the  Immigration  Service  have  no 


280        REGULATION  OF  IMMIGRATION  AND  SOJOURN 

authority  to  waive  the  examination  of  arriving  aliens  upon  dis- 
covery of  the  existence  of  such  a  state  of  facts  as  set  forth  in  Your 
Excellency's  note  of  November  29. 

With  respect  to  your  contention  that  the  first  admission  of  an 
alien  to  the  United  States  is  conclusive  as  to  his  right  to  remain  in 
this  country  and  to  return  hither  after  an  absence  abroad  without 
being  subject  to  the  immigration  laws,  the  Department  of  Com- 
merce and  Labor  points  out  that  this  impression  is  an  erroneous 
one,  inasmuch  as  an  alien  regularly  admitted  may  be  arrested 
and  deported  at  any  time  within  three  years  subsequent,  if  found 
to  have  entered  in  violation  of  law  or  to  be  a  public  charge  from 
causes  existing  prior  to  landing.  Moreover,  it  is  added,  an  alien 
resident  of  this  country,  who  goes  abroad  for  any  purpose,  is  sub- 
ject to  the  immigration  laws  upon  his  return.  The  fact  of  previous 
residence  here,  while  it  might  be  deemed  a  factor  to  assist  in  the 
determination  of  his  right  to  land,  is  by  no  means  conclusive  as  to 
the  existence  of  such  right.  Indeed,  it  appears  that  the  only  per- 
sons exempt  from  the  requirements  of  the  immigration  laws  are 
bona-fide  American  citizens  and  the  diplomatic  and  consular 
officers  of  foreign  countries,  their  suites,  families,  and  guests. 

Accept,  etc., 

HUNTINGTON  WlLSON. 

(Foreign  Relations  of  the  United  States,  1909,  pp.  260-63). 


THE  CASE  OF  ALFRED  LUMB   (1910) 

The  Acting  Secretary  of  State  to  Ambassador  Reid 
[Telegram  —  Paraphrase] 

DEPARTMENT  or  STATE, 
Washington,  March  12, 1910. 

MR.  WILSON  instructs  Mr.  Reid  to  consult  Consul- General 
Griffiths  regarding  reported  deportation  of  Alfred  Lumb,  a  British 
subject  convicted  in  England  of  counterfeiting,  to  the  United 
States;  to  make  careful  investigation,  and,  if  facts  are  found  to  be 
as  reported  by  Mr.  Griffiths,  and,  if  order  of  deportation  to  the 
United  States  has  been  issued,  to  bring  the  matter  to  the  atten- 
tion of  the  British  Foreign  Office,  calling  attention  to  section  2  of 


THE  CASE  OF  ALFRED  LUMB  281 

Immigration  Act  of  February  20,  1907,  34  Statutes  at  Large,  898. 
Mr.  Reid  is  informed  that  the  attitude  of  this  Government  re- 
garding compulsory  or  assisted  emigration  is  set  forth  in  4  Moore's 
Int.  L.  Dig.  sections  560  and  565,  and  he  is  directed  to  inform 
the  British  Government  of  this  attitude,  and  to  say  that  the  Gov- 
ernment of  the  United  States  feels  confident  that  when  the  action 
of  the  local  officers  at  Leeds  has  been  called  to  the  attention  of 
the  British  Government  steps  will  be  taken  to  prevent  the  con- 
summation of  the  order  of  deportation. 

Ambassador  Reid  to  the  Secretary  of  State 

AMERICAN  EMBASSY, 

London,  March  18,  1910. 

Sir:  On  receipt  of  your  cable  instruction  of  the  i3th  instant  I 
immediately  took  steps  to  investigate  whether  the  commissioner 
of  assize  at  Leeds  had  taken  the  course  reported  to  you  through 
the  American  Consul- General  in  London. 

The  first  information  which  I  received  from  the  consul  at  Leeds, 
which  was  confirmed  by  the  press  reports,  led  me  to  believe  that 
the  commissioner  of  assize  had  merely  withheld  sentence  on  the 
ground  that  Alfred  Lumb  should  leave  the  country  within  a  cer- 
tain period  and  that  the  court  itself  had  made  no  reference  to  the 
prisoner's  going  to  the  United  States. 

On  receipt,  however,  of  a  copy  of  the  transcript  of  the  court 
records  it  became  evident  that  the  commissioner,  in  addressing 
the  prisoner,  said,  "Are  you  ready,  if  I  let  you  go,  to  be  bound 
over  to  go  to  America?"  to  which  the  prisoner  replied,  "Yes," 
and  thereupon  the  commissioner  stated  that  he  was  prepared  to 
release  prisoner  on  his  recognizance  and  his  brother's  for  the  sum 
of  £50  each. 

I  have  accordingly  to-day  addressed  a  note  to  the  Foreign 
Office  in  which,  after  bringing  the  facts  to  the  attention  of  Sir 
Edward  Grey,  I  request  him  to  take  such  steps  as  may  be  neces- 
sary to  prevent  the  consummation  of  the  order. 

I  have,  etc., 

WHITELAW  REID. 


282        REGULATION  OF  IMMIGRATION  AND  SOJOURN 

[Enclosure] 

Ambassador  Reid  to  the  Minister  for  Foreign  A  fairs 

AMERICAN  EMBASSY. 

London,  March  16,  igio. 

Sir:  My  attention  has  been  called  to  reports  published  in  the 
Yorkshire  Evening  Post  of  the  8th  and  gth  instant  to  the  effect 
that  one  Alfred  Lumb,  a  British  subject,  has  been  indicted  for 
uttering  counterfeit  coin  and  for  silvering  with  a  certain  liquid 
pennies  and  a  halfpenny  so  that  they  would  resemble  current 
silver  coins,  to  which  indictment  the  prisoner  pleaded  guilty. 

It  appears  that  having  asked  prisoner  whether  in  the  event  of 
his  discharge  being  granted  he  would  be  ready  to  be  bound  over 
to  leave  the  country  and  to  go  to  America,  and  the  prisoner  hav- 
ing answered  in  the  affirmative,  the  commissioner  announced 
that  prisoner  would  be  released  upon  entering  into  a  recognizance 
of  £50  to  leave  the  country  within  one  month,  the  prisoner's 
brother  entering  into  a  like  recognizance  that  the  prisoner  would 
go  within  the  stated  period. 

If  the  reports  that  have  appeared  in  the  Yorkshire  Evening 
Post  are  not  incorrect,  it  would  appear  that  the  commissioner  of 
assize  was  unaware  of  the  provisions  of  the  United  States  Immi- 
gration Act  of  1875,  section  3,  providing  that  "it  shall  be  unlaw- 
ful for  aliens  of  the  following  classes,  namely,  .  .  .  whose  sen- 
tence has  been  remitted  on  condition  of  then-  emigration"  -  this 
provision  being  intended  to  put  a  stop  to  a  practice  in  certain 
countries,  whereby,  on  sending  such  persons  to  the  United  States, 
the  authorities  were  able  to  avoid  the  trouble  and  expense  of  tak- 
ing care  of  their  own  criminals. 

The  Immigration  Act  of  February  22,  1907,  provides  that  per- 
sons inter  alios  who  have  been  convicted  of  or  admit  having  com- 
mitted a  felony  shall  be  excluded  from  admission  to  the  United 
States.  Lumb  would,  therefore,  if  his  identity  were  discovered, 
not  only  be  denied  admission,  but  would,  on  his  arrival,  be 
deported. 

In  bringing  the  matter  to  your  attention,  I  wish  to  point  out, 
in  order  to  avoid  similar  cases  in  the  future,  what  will,  I  think, 
have  occurred  to  you,  that  the  commissioner  of  assize,  in  post- 


THE  CASE  OF  ALFRED  LUMB  283 

poning  a  sentence  upon  the  express  condition  that  the  prisoner 
should  go  to  America,  was  unwittingly  violating  international 
comity,  in  requiring  by  his  sentence  that  the  prisoner  before  him 
should  attempt  to  violate  the  laws  of  the  United  States. 

My  government  feels  confident  that  if  the  facts  of  the  case  prove 
to  be  as  stated  you  will  take  such  steps  as  may  be  necessary  to 
prevent  the  consummation  of  the  commissioner's  order. 

I  have,  etc., 

WHITELAW  REID. 

[On  June  22  Mr.  Reid  enclosed  to  the  Secretary  of  State  at 
Washington  a  note  dated  June  17  which  he  had  received  from  the 
British  Foreign  Office:] 

The  Minister  for  Foreign  A  fairs  to  Ambassador  Reid 

FOREIGN  OFFICE, 
London,  June  17, 


Your  Excellency:  I  did  not  fail  to  refer  to  the  proper  department 
of  His  Majesty's  Government  the  note  which  Your  Excellency 
addressed  to  me  on  the  i6th  of  March  last,  respecting  the  case  of 
Alfred  Lumb,  a  British  subject,  who  was  recently  convicted  of 
uttering  counterfeit  coin  and  was  released  on  condition  of  leaving 
the  United  Kingdom  and  proceeding  to  the  United  States,  and  I 
now  have  the  honor  to  inform  Your  Excellency  that  the  commis- 
sioner of  assize  who  heard  the  case  acted  in  the  matter  in  ignorance 
of  the  United  States  statutes  bearing  upon  the  immigration  of 
convicted  offenders. 

With  the  object  of  avoiding  any  possible  recurrence  of  such  a 
case  the  Secretary  of  State  for  the  Home  Department  has  ad- 
dressed to  all  judges  of  the  high  court,  recorders  of  boroughs,  and 
chairmen  of  quarter  sessions,  a  circular  calling  their  attention  to 
the  provisions  of  United  States  law  on  this  subject. 

I  have,  etc., 

(For  Sir  E.  Grey)  : 
W.  LANGLEY. 

(Foreign  Relations  of  the  United  States,  1910,  pp.  593-97.) 


284  EXPULSION 

§31.  EXPULSION 


THE  CASE  OF  BEN  TILLETT  (1896) 

BEN  TILLETT,  a  British  subject,  arrived  at  Antwerp  on  August 
20,  1896,  for  the  purpose  of  effecting  an  international  federation 
and  strike  of  the  dock  laborers.  He  was  arrested  and  after  a  de- 
tention of  twenty-six  hours  was  placed  on  board  a  vessel  returning 
to  England.  The  British  Government  protested  against  his  ex- 
pulsion. After  a  diplomatic  interchange  in  which  the  governments 
could  reach  no  agreement,  it  was  agreed  by  a  convention  of  March 
19,  1898,  to  submit  the  question  to  a  foreign  jurist  for  arbitration. 
Article  2  of  the  compromis  (agreement  for  arbitration)  defined  the 
competence  of  the  arbitrator  as  follows:  "It  shall  be  the  duty  of 
the  arbitrator  to  consider  whether  the  claim  for  a  pecuniary  in- 
demnity, advanced  by  Her  Majesty's  Government  on  behalf  of 
Mr.  Ben  Tillett,  is  well  founded,  and,  if  so,  to  determine  the 
amount  of  such  indemnity." 

M.  Desjardins,  who  had  received  an  invitation  from  the  two- 
governments  to  act  as  arbitrator,  rendered  his  decision  as  follows: 

"In  discharge  of  the  functions  of  arbitrator  conferred  on  me, 
with  the  authority  of  the  French  Government,  by  virtue  of  the 
Convention  of  the  i9th  March,  1898,  concluded  between  the  Gov- 
ernment of  His  Majesty  the  King  of  the  Belgians  and  the  Gov- 
ernment of  Her  Britannic  Majesty,  on  the  subject  of  the  interna- 
tional dispute  occasioned  by  the  expulsion  of  Mr.  Ben  Tillett,  a 
British  subject,  from  Belgian  territory; 

"Having  carefully  examined  and  maturely  weighed  the  docu- 
ments that  have  been  produced  on  either  side  concerning  the 
indemnity  claimed  by  the  Government  of  Her  Britannic  Majesty 
from  the  Government  of  His  Majesty  the  King  of  the  Belgians  on 
behalf  of  Mr.  Ben  Tillett; 

"Having,  moreover,  proceeded  to  Antwerp  on  the  i5th  August, 
1898,  in  order,  by  means  of  a  full  knowledge  of  the  case,  to  solve 
certain  questions  which  seemed  doubtful  to  me,  and  having  held 
an  inquiry  in  the  Antwerp  prison  itself; 

"I  pronounce  the  following  award  of  arbitration: 


THE  CASE  OF  BEN  TILLETT  285 

"  (A.)  On  the  Tight  of  expulsion  from  the  point  of  view  of  prin- 
ciple: 

"Whereas  the  right  of  a  state  to  exclude  from  its  territory 
foreigners  when  their  dealings  or  presence  appears  to  compromise 
its  security,  cannot  be  contested; 

"Whereas,  moreover,  the  state  in  the  plenitude  of  its  sover- 
eignty judges  the  scope  of  the  acts  which  lead  to  this  prohibition; 

"(B.)  As  to  the  watch  kept  on  the  person  of  Ben  Tillett  in 
consequence  of  the  meeting  of  the  2ist  August,  1896,  and  up  to 
the  confinement  of  this  British  subject  in  the  lock-up  at  Antwerp: 

"Whereas,  if  the  right  of  the  state  to  expel  be  recognized,  the 
means  of  insuring  the  execution  of  its  injunctions  in  that  regard 
cannot  be  denied  to  it; 

"Whereas  the  state  should  have  the  power  to  keep  a  watch  on 
foreigners  whose  presence  seems  dangerous  to  public  order,  and, 
if  it  fears  lest  those  to  whom  it  forbids  its  territory  should  escape 
this  vigilance,  it  may  keep  them  in  view; 

"Whereas,  in  fact,  Ben  Tillett  repaired  to  Belgium  to  organize 
the  international  federation  of  dockers  there,  and  to  foment  a 
strike  which  was  considered  by  the  Royal  Government  to  be  at 
once  prejudicial  to  the  interests  of  the  port  of  Antwerp  and 
dangerous  to  the  public  tranquillity; 

"Whereas  the  Belgian  Government  had  plausible  reasons  for 
thinking  that  Ben  Tillett  had  already  harangued  the  dock  labor- 
ers at  the  'Werker'  Club  on  the  evening  of  the  22d  July,  1896, 
and,  after  this  speech,  had  cleverly  eluded  the  search  of  the 
police; 

"Whereas  that  government  did  not  overstep  its  functions  or 
exceed  its  right  in  endeavoring  not  to  lose  sight  of  Ben  Tillett  on 
the  afternoon  of  the  2ist  August,  and  in  subsequently  securing 
his  person  after  the  meeting  held  in  the  courtyard  of  Schram's 
Inn; 

"Whereas  no  measure  of  expulsion  had,  it  is  true,  yet  been  taken 
against  Ben  Tillett  at  the  time  of  his  being  conducted  to  the  police 
station  about  4  o'clock  in  the  afternoon  of  the  2ist  August,  1896; 
but  whereas  the  ministerial  dispatch  of  the  9th  July,  1896  (re- 
ferred to  in  the  requisition  of  the  commissary  of  police  of  Antwerp, 
fifth  southern  section,  dated  the  2ist  August),  relative  to  foreign- 


286  EXPULSION 

ers  arriving  at  Antwerp  for  the  purpose  of  holding  meetings  there 
on  behalf  of  a  universal  union  of  sailors  and  dock  laborers,  left  no 
doubt  as  to  the  wishes  of  the  central  power;  and  whereas  the 
Antwerp  police  could  not,  without  disobeying  these  instructions, 
fail  to  detain,  on  behalf  of  the  government,  foreigners  who  came 
to  take  an  active  part  in  the  agitation  set  on  foot  since  June,  1896, 
for  the  organization  of  the  international  federation; 

"Whereas,  moreover,  according  to  the  papers  produced  in  the 
case,  and,  in  particular,  a  report  of  the  Assistant  Commissary 
Bucan,  dated  the  3ist  August,  1896,  Ben  Tillett  had  been  formally 
advised  of  the  instructions  given  by  the  Minister;  whereas,  accord- 
ing to  the  deposition  of  the  aforesaid  Bucan,  taken  by  me  on  oath 
on  the  1 5th  August,  1898,  Ben  Tillett  knew  perfectly  well  what  he 
had  to  expect;  he  had  been  officially  informed,  directly  he  had 
landed,  that  if  he  meant  to  hold  the  public  meeting  loudly 
announced  in  the  Seamen's  Chronicle  of  the  8th  August,  1896, 
'he  must  quit  Belgian  territory;  otherwise  he  would  render 
himsel  liable  to  be  arrested  and  conducted  under  escort  to  the 
frontier;' 

"Whereas,  in  this  condition  of  things,  the  agents  of  the  execu- 
tive were  entitled  to  detain  Ben  Tillett  at  the  police  station  rather 
more  than  three  hours,  with  a  view  to  insuring  the  execution  of  a 
measure  of  expulsion  which  had  been  decreed  hi  principle  by  the 
government  in  council,  and  which  was  shortly  to  become  an  ac- 
complished fact; 

"Whereas  decrees  of  expulsion  do  not  generally  precede  the 
events  which  call  for  them,  and  whereas,  it  forcible  means  may 
not  be  employed  to  hold  in  safe-keeping  for  a  few  hours  a  foreigner 
whose  conduct  has  become  a  cause  of  trouble,  until  this  measure 
is  officially  taken,  this  person  will  have  time  to  evade  the  police, 
and  the  Government  will  find  itself  powerless; 

"(C.)  On  the  imprisonment  in  a  lock-up: 

"Whereas  the  British  Government  reproach  the  Belgian  au- 
thorities with  having  taken  Ben  Tillett  from  the  police  station  to 
conduct  him  to  a  prison,  where  he  found  himself  mixed  up  with 
men  under  sentence  for,  or  accused  of,  common  law  offenses; 

"Whereas,  as  a  matter  of  fact,  Ben  Tillett  was  entered  in  the 
books  at  the  Antwerp  lock-up  at  8  o'clock  in  the  evening  of  the 


THE  CASE  OF  BEN  TILLETT  287 

2ist  August,  1896,  in  order,  according  to  the  requisition  of  the 
2ist  August,  1896,  to  be  'kept  at  the  disposal  of  the  gendar- 
merie/ and  thence  'conducted  out  of  the  kingdom;' 

"Whereas  the  Belgian  authorities  undoubtedly  conformed  to 
the  rule  of  this  penitentiary  establishment,  according  to  which  the 
lock-up  is  intended  not  only  for  accused  persons,  but  also  for 
'foreigners  detained  on  behalf  of  the  Administrator  of  Public 
Safety,  and  for  those  whose  extradition  is  demanded  by  foreign 
governments; 1  and  whereas  the  sole  question  at  issue  is  whether 
the  Royal  Government  has  not  infringed  an  obligation  of  inter- 
national propriety  in  imprisoning  Ben  Tillett  in  quarters  simul- 
taneously devoted  to  these  different  classes  of  prisoners; 

"But  whereas,  in  fact,  on  the  one  hand,  Ben  Tillett  was  con- 
fined hi  two  cells  of  this  building  successively; 

"And  whereas  in  law,  on  the  other  hand,  it  is  impossible  to  com- 
pel a  sovereign  state  either  to  construct  special  establishments 
exclusively  designed  for  the  provisional  detention  of  foreigners 
between  the  time  of  their  arrest  and  the  moment  when  the  measure 
of  expulsion  can  be  carried  out,  or  even  to  reserve  them  special 
quarters  in  houses  already  constructed;  whereas  the  Belgian  Gov- 
ernment satisfied  the  exigencies  of  international  courtesy  by 
isolating  Ben  Tillett,  and  thereby  preventing  him  from  coming 
into  contact  with  persons  awaiting  their  trial; 

"(D.)  On  the  duration  of  the  whole  detention: 

"Whereas,  in  fact,  Ben  Tillett,  having  been  entered  in  the  books 
of  the  Antwerp  prison  at  8  o'clock  in  the  evening  of  the  2ist 
August,  was  not  taken  out  till  6  o'clock  in  the  evening  of  the  next 
day,  the  22d  August,  in  order  to  be  taken  on  board  the  Harwich 
boat  which  left  for  England  at  7  o'clock;  and  whereas  twenty-six 
(?  twenty-two)  hours  thus  elapsed  from  the  moment  when  this 
English  subject  was  consigned  to  the  police  station  until  the  time 
when  he  was  put  in  a  position  to  go  back  to  his  country; 

"But  whereas  the  Belgian  Government  could  not  be  compelled 
to  send  Ben  Tillett  away  by  the  Harwich  boat  at  7  P.M.  on  the 
2ist  August;  whereas  the  Antwerp  police  had  to  concert  with  the 
government,  and  consequently  communicate  with  Brussels;  and 
whereas  the  instructions  awaited  by  the  witness  Winne,  assistant 

1  Article  4  under  the  general  heading:  "purposes  of  the  prison." 


288  EXPULSION 

to  the  police  commissary  at  Antwerp,  heard  by  us  on  oath,  had 
not  reached  him  at  7  o'clock; 

"Whereas  it  is  impossible  to  maintain  that  these  instructions 
ought  necessarily  to  have  reached  the  Antwerp  police  agents  by 
7  o'clock,  without  considering  with  excessive  strictness  the  manner 
in  which  the  representatives  of  the  Belgian  Government  use  their 
time; 

"Whereas  other  boats,  it  is  true,  left  for  England  both  on  the 
night  of  the  2ist-22d  August  and  hi  the  morning  of  the  22d  August, 
and  whereas  the  British  Government  asks  in  its  second  memo- 
randum why  one  of  these  various  means  of  transport  was  not  made 
use  of; 

"But  whereas  it  appears  from  the  documents  produced  and 
from  the  depositions  taken  by  us  in  the  prison  at  Antwerp  on  the 
1 5th  August,  1898: 

"i.  That  Ben  Tillett,  when  he  embarked  for  Antwerp  on  the 
Harwich  boat,  had  taken  a  return  ticket  which  was  available  for 
thirty  days. 

"2.  That,  in  order  to  utilize  the  ticket  in  question,  he  intended 
to  make  use  of  the  same  line  of  steamers  on  his  return  voyage; 

"3.  That  he  had  expressly  informed  the  witness  Winne  of  his 
intention  of  returning  by  the  Harwich  boat; 

"That  under  these  circumstances  the  Belgian  Government  were 
guilty  of  no  error  in  sending  Ben  Tillett  on  board  the  Harwich 
boat  at  7  o'clock  on  the  22d  August,  this  being  the  earliest  time 
of  sailing  of  that  vessel; 

"  (E.)  As  to  the  treatment  to  which  he  was  exposed  in  the  lock- 
up: 

"Whereas  when  I  was  at  Antwerp  on  the  i5th  August,  1898,  I 
requested  M.  van  Calster,  the  officer  in  charge  of  the  lock-up,  to 
have  cells  6  and  29  successively  occupied  by  Ben  Tillett  on  the 
2ist  and  22d  August  opened  for  my  inspection; 

"Whereas  I  found  that  they  were  dry,  sufficiently  ventilated, 
clean,  with  no  smell;  that  the  beds  were  sufficiently  large;  the 
single  blanket  on  the  latter  appeared  to  me  to  be  sufficient  for  the 
needs  of  the  persons  occupying  the  cells,  hi  view  of  the  temperature 
which  prevails  during  the  month  of  August;  and  it  did  not  appear 
to  me  that  a  stay  of  twenty-two  hours  in  either  of  these  cells  at 


THE  CASE  OF  BEN  TILLETT  289 

that  season  of  the  year  could  possibly  endanger  the  health  of  a 
person  detained  in  them; 

"Whereas  cells  6  and  29  might  have  been  tampered  with,  in 
view  of  my  approaching  visit,  I  caused  cells  8,  12,  and  21  to  be 
opened;  and  found  these  three  cells  to  be  arranged  in  the  same 
manner; 

"Whereas  an  official  extract  from  the  register  of  the  prison  at 
Antwerp,  which  was  submitted  for  my  inspection,  showed  that 
the  administration  had  paid  during  the  first  seven  months  of  1896, 
80 1  days'  wages  to  whitewashes,  259  days'  wages  to  bricklayers, 
334  days'  wages  to  painters,  117  days'  wages  to  mattress-stuff ers; 
the  lockup  being  clearly  maintained  on  the  same  footing  in  1896  as 
it  is  in  1898; 

"Whereas,  moreover,  Ben  Tillett  had  every  facility  for  obtain- 
ing an  additional  supply  of  food  if  the  ordinary  prison  fare  ap- 
peared to  him  insufficient  in  quantity; 

"Whereas  the  director  of  the  prison  declared  to  me  very  posi- 
tively on  oath  that  persons  detained  there  and  foreigners  placed  at 
the  disposal  of  the  Administration  of  Public  Safety  were  never 
compelled  to  wear  prison  dress,  except  in  cases  of  manifest  want 
of  cleanliness  and  for  hygienic  reasons;  the  8ist  article  of  the 
prison  Regulations  merely  stating  that '  the  prisoner  is  to  be  made 
to  wear  the  prison  dress  if  he  is  dirty; '  whereas  the  use  even  of  the 
hood,  according  to  the  Ministerial  Circular  of  August  24,  1891, 
is  not  obligatory  in  the  case  of  persons  detained  or  accused  or  in 
the  case  of  persons  arrested  for  debt;  and  whereas  according  to 
the  deposition  of  the  witness  Gillade,  Ben  Tillett  was  not  com- 
pelled to  wear  prison  dress,  in  accordance  with  the  provision  of 
article  81  of  the  Regulations;  that,  in  fact,  it  is  not  established  that 
this  humiliation  was  inflicted  on  him; 

"  (F.)  As  to  the  relation  between  the  detention  of  Ben  Tillett 
in  the  prison  at  Antwerp  and  the  state  of  his  health: 

"Whereas  there  is  no  ground  for  supposing  that  there  is  a  rela- 
tion of  cause  and  effect  between  the  detention  of  twenty-two 
hours  and  the  state  of  ill-health  certified  to  by  two  physicians; 

"Whereas  one  of  the  certificates  connects  the  nervous  troubles 
of  which  Ben  Tillett  complains  with  a  state  of  'prolonged  ner- 
vous excitement,'  and  that  this  orator  did,  from  the  29th  August 


290  EXPULSION 

and  during  the  whole  month  of  September,  carry  on  a  campaign 
of  meetings,  with  the  greatest  zeal  and  activity; 

"For  these  reasons: 

"I  decide  that  the  demand  for  compensation  put  forward  by 
Her  Majesty's  Government  has  no  basis,  and  I  declare  them  non- 
suited; 

"I  condemn  them  in  costs,  in  virtue  of  article  5  of  the  Conven- 
tion of  the  ipth  March,  1898,  assuming  that  there  are  costs  to  be 
paid;  but  at  the  same  time  I  declare  that,  as  far  as  I  myself  am 
concerned,  I  make  no  claim  to  fees  or  reimbursement  of  expenses. 

"Done  at  Paris  in  duplicate,  the  26th  December,  1898. 
"  (Signed)  ARTHUR  DESJARDINS, 

"  Membre  de  I'Institut  de  France  et  de 
VInstitvt  de  Droit  International, 
Avocat  Central  pres  la  Cour  de 
Cassation  de  France." 

(Parliamentary  Papers  [1899],  (46),  Papers  relating  to  the  Arbi- 
tration in  the  case  of  Mr.  Alderman  Ben  Tittett.) 


PAQUET'S   CASE 

Belgian-Venezuelan  Mixed  Claims  Commission,  1903. 

Filtz,  Umpire: 

"The  umpire  having  examined  and  studied  the  record,  and  con- 
sidering — 

"That  Mr.  N.  A.  Paquet,  a  Belgian  subject,  domiciled  in  Ca- 
racas, claims  the  sum  of  280,000  bolivars  for  damages,  direct  and 
indirect,  traveling  expenses  and  hotel  expenses,  because  the  Gov- 
ernment of  Venezuela  prevented  him  from  landing  at  La  Guaira; 

"That  the  claim  has  been  reduced  by  the  Belgian  Commissioner 
by  the  sum  of  250,000  bolivars  for  indirect  damages,  and  insisted 
upon  only  for  direct  damages,  estimated  at  4,500  bolivars; 

"That  the  right  to  expel  foreigners  from  or  prohibit  their  entry 
into  the  national  territory  is  generally  recognized;  that  each  state 
reserves  to  itself  the  exercise  of  this  right  with  respect  to  the  per- 
son of  a  foreigner  if  it  considers  him  dangerous  to  public  order,  or 
for  considerations  of  a  high  political  character,  but  that  its  ap- 
plication cannot  be  invoked  except  to  that  end; 

"That,  on  the  other  hand,  the  general  practice  among  govern- 


GUATEMALAN  CUSTOMS  LAWS  291 

ments  is  to  give  explanations  to  the  government  of  the  person  ex- 
pelled if  it  asks  them,  and  when  such  explanations  are  refused,  as 
in  the  case  under  consideration,  the  expulsion  can  be  considered 
as  an  arbitrary  act  of  such  a  nature  as  to  entail  reparation,  which  is 
aggravated  in  the  present  case  by  the  fact  that  the  attributes  of 
the  executive  power,  according  to  the  Constitution  of  Venezuela, 
do  not  extend  to  the  power  to  prohibit  the  entry  into  the  national 
territory,  or  expelling  therefrom  the  domiciled  foreigners  whom 
the  government  suspects  of  being  prejudicial  to  the  public  order; 

"That,  besides,  the  sum  demanded  does  not  appear  to  be  exag- 
gerated — 

"Decides  that  this  claim  of  N.  A.  Paquet  is  allowed  for  4,500 
francs." 

(Venezuelan  Arbitrations  of  1903,  prepared  by  J.  H.  Ralston 
[Washington,  1904],  pp.  267-68.) 


§32.  TARIFF  AND  THE  REGULATION  OF  IMPORTS 


GUATEMALAN  CUSTOMS  LAWS   (1875) 

COMPLAINT  was  made  by  an  American  firm  against  the  Govern- 
ment of  Guatemala  for  causing  some  packages  of  imported  mer- 
chandise to  be  opened.  "Though  the  inconvenience  to  which  those 
gentlemen  may  have  been  subjected  by  that  proceeding  may,"  said 
the  Department  of  State,  "be  a  subject  of  regret,  it  is  apprehended 
that  exemption  from  it  cannot  be  claimed  on  the  principle  of 
international  law  which  you  suppose  may  be  applicable  to  the 
case.  In  the  absence  of  a  treaty,  at  least,  that  government  may 
carry  into  effect  its  municipal  law  in  regard  to  importations 
from  abroad  in  such  way  as  may  be  deemed  necessary  for  the  pro- 
tection of  its  revenue.  The  same  right  will  be  exercised  here  in 
respect  to  importations  by  citizens  of  Guatemala  into  the  United 
States." 

(Moore:  Digest  of  International  Law,  vol.  n,  pp.  66-67.) 


292          TARIFF  AND  THE  REGULATION  OF  IMPORTS 

INSPECTION  OF  AMERICAN  PORK  EXPORTS 

IN  1 88 1,  and  for  several  years  thereafter,  the  Government  of 
the  United  States  was  involved  in  a  diplomatic  controversy  with 
the  Governments  of  France  and  Germany  over  their  action  in  for- 
bidding the  importation  into  their  respective  countries  of  American 
pork.  The  prohibition  was  based  on  the  alleged  occurrence  of 
trichinae  in  American  hogs,  but  later  it  was  practically  avowed  to 
be  for  the  protection  of  the  agricultural  interests.  One  of  the 
French  officials  in  the  course  of  the  discussion,  while  stating  that 
the  exclusion  was  made  in  the  first  instance  on  sanitary  grounds, 
admitted  that  "the  idea  of  protection  to  French  producers  of  salt 
pork  may  have  had  its  weight  in  maintaining  the  prohibition.  He 
personally  did  not  sympathize  with  the  protectionist  views  .  .  . 
but  he  was  sorry  to  say  the  tendency  of  the  new  Chamber  seemed 
to  be  strongly  in  the  opposite  direction."  The  American  Minister 
reminded  him  "that  there  was  a  difference  between  protection  and 
prohibition"  and  that  there  was  "invidious  discrimination  in 
admitting  the  same  class  of  products  from  other  countries  while 
prohibiting  ours."  (Foreign  Relations  of  the  United  States,  i88p, 
pp.  166-67.)  The  prohibition  was  finally  removed  by  France  in 
1891  and  high  tariff  duties  substituted. 

On  January  24,  1891,  Mr.  Phelps,  the  American  Minister  at 
Berlin,  reported  to  his  government  as  follows: 

"I  have  the  honor  to  call  your  attention  to  the  debate  which 
occupied  two  sessions  of  the  Reichstag,  one  on  Wednesday,  the 
other  on  Friday  of  this  week.  .  .  . 

"The  debate  was  opened  by  Dr.  Earth.  He  referred  to  the 
origin  of  this  policy  of  exclusion  as  so  near  in  time  and  spirit  to 
Germany's  adoption  of  the  protective  system  that  one  cannot  but 
draw  the  inference  that  it  was  part  of  that  system ;  and  the  prob- 
ability that  the  policy  of  exclusion  was  one  of  protection  and  not 
of  sanitation  was  used  with  more  or  less  directness  by  all  who 
subsequently  spoke  on  his  side,  and  as  earnestly  and  uniformly 
denied  by  those  who  spoke  for  the  government."  (Foreign  Rela- 
tions of  the  United  States,  1891,  pp.  501-02.) 

In  his  correspondence  with  the  German  Minister  for  Foreign 
Affairs,  Mr.  Phelps  argued  strongly  against  the  position  taken 


INSPECTION  OF  AMERICAN  PORK  EXPORTS  293 

by  the  German  Government.  -"Everybody  knows,"  he  said, 
"that  65,000,000  Americans  eat  American  pork,  and  that 
there  has  not  been  a  case  of  illness  or  death  reported  as  oc- 
curring from  its  use.  .  .  .  Everybody  knows  that  35,000,000 
Englishmen  eat  it,  and  that  it  is  the  staple  and  cheap  nourish- 
ment of  the  British  laborer,  whose  health  and  strength  are 
models  for  emulation.  .  . 

"The  undersigned  is  informed  that  this  almost  universal  testi- 
mony met  with  a  single  objection:  American  pork  is  harmless  to 
Americans  and  other  consumers,  because  they  eat  it  cooked;  is 
harmful  to  German  consumers,  however,  because  they  use  it  un- 
cooked. In  answer  to  this  statement,  may  it  not  be  urged  that 
6,000,000  Americans  born  in  Germany  or  from  parents  who  were 
born  in  Germany  probably  retain  to  a  great  extent  the  tastes  and 
habits  of  their  Fatherland  in  this  particular?  Yet  it  has  never  been 
charged  that  American  pork  has  done  them  any  harm."  (Foreign 
Relations  of  the  United  States,  i8pi,  p.  506.) 

Congress  having  provided,  by  the  act  of  March  3,  1891,  for  the 
inspection  of  cattle  and  hogs,  the  German  Government  intimated 
its  intention  to  accept  the  act  as  satisfactory  and  to  repeal  the 
decree  excluding  American  pork.  It  suggested,  however,  as  con- 
sideration, the  removal  of  American  duties  on  German  sugar.  But 
the  American  Government  was  not  willing  to  negotiate  on  that 
basis.  "The  German  Government,"  it  was  pointed  out,  "has 
persistently  adhered  to  the  position  that  the  origin  and  mainte- 
nance of  the  pork  prohibition  was  based  on  the  absence  of,  or 
imperfect,  inspection  of  American  pork,  which,  it  was  alleged, 
exposed  German  consumers  to  disease.  If  that  government  rec- 
ognizes the  sufficiency  of  the  present  inspection,  it  hardly  seems 
reasonable  to  ask  that  the  United  States  should  purchase  the 
revocation  of  the  prohibition  by  a  promised  concession  of  duties 
on  sugar.  The  President  is  disposed  to  treat  with  the  German 
Government  respecting  commercial  reciprocity  .  .  .  with  the 
greatest  spirit  of  liberality,  and  the  prompt  action  of  that  govern- 
ment regarding  the  pork  inspection  will  have  its  due  weight  in 
determining  the  terms  of  the  reciprocity  arrangement;  but  it 
would  hardly  comport  with  the  past  contention  of  the  German 
Government  to  make  the  revocation  of  the  prohibition  dependent 


294          TARIFF  AND  THE  REGULATION  OF  IMPORTS 

upon  an  act  having  no  relation  to  it."  (Foreign  Relations  of  the 
United  States,  1891,  p.  511.) 

The  German  decree  of  exclusion  was  repealed  without  condi- 
tions on  September  3,  1891,  and  American  pork  admitted  on 
certification  of  American  inspection. 

The  grievances  of  American  pork  exporters,  however,  did  not 
cease  with  the  repeal  of  the  prohibition.  Microscopical  examina- 
tion was  expensive,  and  in  the  absence  of  disease  in  the  United 
States  was  felt  to  be  unnecessary.  Besides,  the  additional  ex- 
amination of  American  pork  in  Germany  was  vexatious  and  easily 
gave  rise  to  further  misunderstanding. 

In  1895  the  report  of  the  Secretary  of  Agriculture  referred  to 
"the  agrarian  protectionists  of  Germany,  who  have  instituted  by 
unjust  discriminations  every  possible  impediment  to  the  consump- 
tion of  pork  and  beef  from  the  United  States  in  that  Empire"  and 
suggested  that  "reciprocal  certification  of  the  chemical  purity  of 
wines  exported  from  those  countries  to  the  United  States  may  some 
time  be  demanded  from  the  German  and  French  Governments  as 
a  sanitary  shield  to  American  consumers,  for  certainly  American 
meats  are  as  wholesome  as  foreign  wines."  (House  Documents, 
54th  Cong.,  ist  Sess.  [1895-96],  vol.  74,  p.  10.) 

In  a  dispatch  of  November  20,  1897,  Mr.  Sherman,  Secretary 
of  State,  requested  Mr.  White,  the  American  Minister  at  Berlin, 
to  make  representations  on  the  subject  to  the  German  Govern- 
ment, in  part,  as  follows: 

"...  You  will  bring  the  foregoing  to  the  attention  of  the 
Minister  for  Foreign  Affairs,  at  the  same  time  insisting  that  — 

"i.  American  pork  as  sent  to  Germany  is  practically  harmless 
and  certainly  far  less  dangerous  than  inspected  German  pork, 
as  is  shown  by  the  medical  records  of  Germany. 

"2.  The  discovery  of  trichinae  in  a  few  pieces  of  our  pork  when 
reexamined  abroad  cannot  be  accepted  as  evidence  of  inefficient 
inspection.  The  numerous  cases  of  trichinosis  in  man  which  have 
occurred  in  Germany  from  eating  pork  inspected  there  shows  the 
impossibility  of  discovering  all  trichinous  meat  by  the  first 
inspection. 

"3.  As  American  pork  is  carefully  inspected  here  before  ship- 
ment, it  is  unjust  to  our  shippers  to  require  them  to  pay  the 


PRIVILEGES  OF  TRANSIT  TO  CHINESE  LABORERS     295 

expense  of  a  second  inspection  after  it  arrives  in  Germany.  This 
expense,  together  with  the  damage  from  unpacking,  exposure, 
and  hastily  repacking,  is  a  great  obstacle  to  this  important  branch 
of  our  commerce  with  the  German  nation."  (Foreign  Relations  of 
the  United  States,  1897,  P-  I91-) 

In  1898  the  American  Consul  at  Cologne,  in  a  report  upon 
trichinae  in  Germany,  stated  that  the  German  inspection  of  Ameri- 
can meats  was  "much  more  rigid  than  the  tests  for  the  German 
home  products."  He  added  that  "other  expedients  also  appear  to 
be  resorted  to  by  self-constituted  authorities  in  order  to  discour- 
age and  prevent  the  large  consumption  of  American  meats.  There 
is  now  pending  before  the  court  at  Elberfeld,  a  town  near  Cologne, 
a  suit  relating  to  a  case  of  meat  from  America  which  was  packed 
in  borax.  It  seems  that  the  municipality  of  Cologne  issued,  through 
the  daily  papers,  a  notice  or  warning  to  dealers  that  such  meat 
should  not  be  handled  or  sold  by  them,  alleging  its  use  to  be  detri- 
mental to  the  health  of  the  consumer.  Any  citizen  is  permitted 
under  this  order  to  file  a  complaint  regarding  this  kind  of  meat.  As 
a  consequence,  when  the  Burgermeister  [mayor]  issues  his  edict  or 
warning,  the  dealers  in  meats  are  afraid  to  handle  or  sell  the  pro- 
hibited products;  and  this  is  done  in  spite  of  the  fact  that  the  Em- 
peror alone  has  the  power  to  prescribe  the  manner  of  packing  or 
preparing  human  food."  (House  Documents,  55th  Cong.,  3d  Sess. 
[1898-90],  vol.  89,  pp. 


§33.  TRANSIT  FACILITIES 


PRIVILEGES  OF  TRANSIT  TO  CHINESE  LABORERS 

(1882) 

THE  Attorney-General,  in  an  opinion  given  to  the  Secretary  of 
State,  December  26,  1882,  held  that  Chinese  laborers,  hi  transit 
across  the  territory  of  the  United  States  from  one  foreign  country 
to  another,  were  neither  emigrants  nor  Chinese  coming  to  the 
United  States  as  laborers,  within  the  Treaty  of  November  17, 
1880,  or  the  act  of  May  6,  1882,  and  further  that  they  were  not 


296  TRANSIT  FACILITIES 

required  to  produce  the  certificates  of  identification  prescribed 
by  sections  4  and  6  of  that  act,  provided  that  they  established  by 
competent  proof  their  transient  status.  This  opinion  was  approved 
by  the  Department  of  State  and  transmitted  to  the  Secretary  of 
the  Treasury,  who  revoked  a  contrary  decision  of  his  Department 
of  July  20,  1882,  and  adopted  on  January  23,  1883,  regulations 
permitting  Chinese  Consuls  in  the  ports  of  the  United  States  to 
issue  certificates  to  Chinese  laborers  arriving  in  transit.  Such  a 
certificate  was  required  wherever  there  was  a  resident  Chinese 
Consul,  but  if  there  was  no  such  consul,  other  competent  evidence 
was  receivable,  such  as  a  through  ticket  across  the  territory  of  the 
United  States,  and  affidavits. 

(Extracts  from  Moore:  Digest  of  International  Law,  vol.  rv, 
pp.  232-33.) 

NAVIGATION  OF  THE  MISSISSIPPI  (1792) 

THE  question  of  the  navigation  of  the  Mississippi  was  the  sub- 
ject of  consideration  in  the  Continental  Congress  and  of  negotia- 
tion at  Madrid  during  the  American  Revolution,  Spain  demand- 
ing the  recognition  of  her  claim  to  the  exclusive  navigation  of  the 
river  as  a  necessary  condition  of  aid  to  the  United  States  in  their 
struggle  with  Great  Britain. 

The  treaty  of  peace  between  the  United  States  and  Great 
Britain  of  1782-83  declared  (art.  8):  "The  navigation  of  the  river 
Mississippi,  from  its  source  to  the  ocean,  shall  forever  remain 
free  and  open  to  the  subjects  of  Great  Britain  and  the  citizens  of 
the  United  States." 

In  1790  the  diplomatic  representative  of  the  United  States  at 
Madrid  was  instructed  to  urge  upon  the  Spanish  Government  the 
immediate  opening  of  the  river. 

In  a  report  to  the  President  of  March  18,  1792,  Mr.  Jefferson, 
as  Secretary  of  State,  asserted  the  right  of  the  United  States  to 
the  free  navigation  of  the  Mississippi  within  the  Spanish  dominions 
on  the  ground  (i)  of  the  Treaty  of  Paris  of  1763,  (2)  of  the  treaty 
of  peace  with  Great  Britain  of  1782-83,  and  (3)  of  "the  law  of 
nature  and  nations,"  a  ground  declared  to  be  "still  broader  and 
more  unquestionable"  than  either  of  the  others.  "The  ocean," 


NAVIGATION  OF  THE  MISSISSIPPI  297 

said  Mr.  Jefferson,  "is  free  to  all  men,  and  their  rivers  to  all  their 
inhabitants.  .  .  .  Accordingly,  in  all  tracts  of  country  united 
under  the  same  political  society,  we  find  this  natural  right  uni- 
versally acknowledged  and  protected  by  laying  the  navigable 
rivers  open  to  all  their  inhabitants.  When  their  rivers  enter  the 
limits  of  another  society,  if  the  right  of  the  upper  inhabitants  to 
descend  the  stream  is  in  any  case  obstructed,  it  is  an  act  of  force 
by  a  stronger  society  against  a  weaker,  condemned  by  the  judg- 
ment of  mankind.  .  .  .  The  Roman  law,  which,  like  other  munici- 
pal laws,  placed  the  navigation  of  their  rivers  on  the  footing  of 
nature,  as  to  their  own  citizens,  by  declaring  them  public  (fiumina 
publica  sunt,  hoc  est  populi  Romani,  Inst.  2,  t.  i,  §  2),  declared  also 
that  the  right  to  the  use  of  the  shores  was  incident  to  that  of  the 
water. 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  I,  pp. 
623-24.) 


CHAPTER  VII 

THE  PROTECTION  OF  NATIONAL  INTERESTS 
ABROAD 


§34.   BASIS   OF  PROTECTION 


THE  KOSZTA  CASE   (1853) 

To  the  note  of  the  Austrian  Charge  d'Affaires  of  August  29, 
1853,  Secretary  of  State  Marcy  replied  in  a  note  of  September 
26,  1853,  as  follows: 

"To  bring  out  conspicuously  the  questions  to  be  passed  upon, 
it  seems  to  the  undersigned  that  the  facts  should  be  more  fully 
and  clearly  stated  than  they  are  in  Mr.  Hulsemann's  note. 

"Martin  Koszta,  by  birth  a  Hungarian,  and  of  course  an  Aus- 
trian subject  at  that  time,  took  an  open  and  active  part  in  the 
political  movement  of  1848-49,  designed  to  detach  Hungary  from 
the  dominion  of  the  Emperor  of  Austria.  At  the  close  of  that 
disastrous  revolutionary  movement,  Koszta,  with  many  others 
engaged  hi  the  same  cause,  fled  from  the  Austrian  dominions,  and 
took  refuge  in  Turkey.  The  extradition  of  these  fugitives,  Koszta 
among  them,  was  demanded  and  pressed  with  great  vigor  by 
Austria,  but  firmly  resisted  by  the  Turkish  Government.  They 
were,  however,  confined  at  Kutahia,  but  at  length  released,  with 
the  understanding  or  by  express  agreement  of  Austria  that  they 
should  leave  Turkey  and  go  into  foreign  parts.  Most  of  them,  it 
is  believed,  before  they  obtained  their  release,  indicated  the 
United  States  as  the  country  of  their  exile.  It  is  alleged  that 
Koszta  left  Turkey  in  company  with  Kossuth  —  this  is  believed 
to  be  a  mistake;  and  that  he  engaged  never  to  return  —  this  is 
regarded  as  doubtful.  To  this  sentence  of  banishment  —  for 
such  is  the  true  character  of  their  expulsion  from  Turkey  —  Aus- 


THE  KOSZTA  CASE  299 

tria  gave  her  consent;  in  truth,  it  was  the  result  of  her  efforts  to 
procure  their  extradition,  and  was  accepted  by  her  as  a  substi- 
tute for  it.  She  had  agents  or  commissioners  at  Kutahia  to  at- 
tend to  then*  embarkation,  and  to  her  the  legal  consequences  of 
this  act  are  the  same  as  if  it  had  been  done  directly  by  herself, 
and  not  by  the  agency  of  the  Ottoman  Porte.  Koszta  came  to  the 
United  States  and  selected  this  country  for  his  future  home. 

"On  the  3ist  of  July,  1852,  he  made  a  declaration,  under  oath, 
before  a  proper  tribunal,  of  his  intention  to  become  a  citizen  of 
the  United  States  and  renounce  all  allegiance  to  any  other  state 
or  sovereign. 

"After  remaining  here  one  year  and  eleven  months,  he  returned, 
on  account,  as  is  alleged,  of  private  business  of  a  temporary  char- 
acter, to  Turkey  in  an  American  vessel,  claimed  the  rights  of  a 
naturalized  American  citizen,  and  offered  to  place  himself  under 
the  protection  of  the  United  States  Consul  at  Smyrna.  The  con- 
sul at  first  hesitated  to  recognize  and  receive  him  as  such;  but 
afterwards,  and  sometime  before  his  seizure,  he,  and  the  American 
Charge  d'Affaires  ad  interim  at  Constantinople,  did  extend  pro- 
tection to  him,  and  furnished  him  with  a  tezkereh  —  a  kind  of 
passport  or  letter  of  safe-conduct,  usually  given  by  foreign  con- 
suls in  Turkey  to  persons  to  whom  they  extend  protection,  as  by 
Turkish  laws  they  have  a  right  to  do.  It  is  important  to  observe 
that  there  is  no  exception  taken  to  his  conduct  after  his  return  to 
Turkey,  and  that  Austria  has  not  alleged  that  he  was  there  for 
any  political  object,  or  for  any  other  purpose  than  the  transac- 
tion of  private  business.  While  waiting,  as  is  alleged,  for  an  op- 
portunity to  return  to  the  United  States,  he  was  seized  by  a  band 
of  lawless  men  —  freely,  perhaps  harshly,  characterized  in  the 
dispatches  as  'ruffians,'  'Greek  hirelings/  'robbers'  —  who  had 
not,  nor  did  they  pretend  to  have,  any  color  of  authority  emanat- 
ing from  Turkey  or  Austria,  treated  with  violence  and  cruelty, 
and  thrown  into  the  sea.  Immediately  thereafter  he  was  taken 
up  by  a  boat's  crew  lying  in  wait  for  him,  belonging  to  the  Aus- 
trian brig-of-war  the  Huszar,  forced  on  board  of  that  vessel,  and 
there  confined  in  irons.  It  is  now  avowed,  as  it  was  then  suspected, 
that  these  desperadoes  were  instigated  to  this  outrage  by  the  Aus- 
trian Consul-General  at  Smyrna;  but  it  is  not  pretended  that  he 


300  BASIS  OF  PROTECTION 

acted  under  the  civil  authority  of  Turkey,  but,  on  the  contrary, 
it  is  admitted  that,  on  application  to  the  Turkish  Governor  at 
Smyrna,  that  magistrate  refused  to  grant  the  Austrian  Consul 
any  authority  to  arrest  Koszta. 

"The  Consul  of  the  United  States  at  Smyrna,  as  soon  as  he 
heard  of  the  seizure  of  Koszta,  and  the  Charg6  d'Affaires  of  the 
United  States  ad  interim  at  Constantinople,  afterwards  inter- 
ceded with  the  Turkish  authorities,  with  the  Austrian  Consul- 
General  at  Smyrna,  and  the  commander  of  the  Austrian  brig-of- 
war,  for  his  release,  on  the  ground  of  his  American  nationality. 
To  support  this  claim,  Koszta's  original  certificate  of  having 
made,  under  oath,  in  a  court  in  New  York,  a  declaration  of  in- 
tention to  become  an  American  citizen,  was  produced  at  Smyrna, 
and  an  imperfect  copy  of  it  placed  in  the  hands  of  the  Imperial 
Austrian  Internuncio  at  Constantinople.  The  application  to 
these  officers  at  Smyrna  for  his  liberation,  as  well  as  that  of  Mr. 
Brown,  our  Charg6  d'Affaires,  to  Baron  de  Bruck,  the  Austrian 
Minister  at  Constantinople,  was  fruitless,  and  it  became  noto- 
rious at  Smyrna  that  there  was  a  settled  design  on  the  part  of 
the  Austrian  officials  to  convey  him  clandestinely  to  Trieste  — 
a  city  within  the  dominion  of  the  Emperor  of  Austria.  Oppor- 
tunely, the  United  States  sloop-of-war,  the  St.  Louis,  under  the 
command  of  Captain  Ingraham,  arrived  in  the  harbor  of  Smyrna 
before  this  design  was  executed.  The  commander  of  the  St. 
Louis,  from  the  representation  of  the  case  made  to  him,  felt  it  to 
be  his  duty,  as  it  unquestionably  was,  to  inquire  into  the  validity 
of  Koszta's  claim  to  American  protection.  He  proceeded  with  de- 
liberation and  prudence,  and  discovered  what  he  considered  just 
grounds  for  inquiring  into  Koszta's  claim  to  be  discharged  on  ac- 
count of  his  American  nationality.  During  the  pendency  of  this 
inquiry,  he  received  notice  of  the  design  to  take  Koszta  clandes- 
tinely, before  the  question  at  issue  was  settled,  into  the  dominions 
of  the  Emperor  of  Austria.  As  there  was  other  evidence  of  bad 
faith  besides  the  discovered  design  of  evading  the  inquiry,  Cap- 
tain Ingraham  demanded  his  release,  and  intimated  that  he  should 
resort  to  force  if  the  demand  was  not  complied  with  by  a  certain 
hour.  Fortunately,  however,  no  force  was  used.  An  arrangement 
was  made  by  which  the  prisoner  was  delivered  into  the  custody 


THE  KOSZTA  CASE  301 

of  the  French  Consul-General,  to  be  kept  by  hi™  until  the  United 
States  and  Austria  should  agree  as  to  the  manner  of  disposing  of 
him.  .  .  . 

"His  Imperial  Majesty  demands  that  the  Government  of  the 
United  States  shall  direct  Koszta  to  be  delivered  to  him;  that  it 
shall  disavow  the  conduct  of  the  American  agents  in  this  affair, 
call  them  to  a  severe  account,  and  tender  satisfaction  propor- 
tionate to  the  outrage. 

"In  order  to  arrive  at  just  conclusions,  it  is  necessary  to  ascer- 
tain and  clearly  define  Koszta's  political  relation  with  Austria 
and  with  the  United  States  when  he  was  seized  at  Smyrna.  This 
is  the  first  point  which  naturally  presents  itself  for  consideration, 
and  perhaps  the  most  important  one  in  its  bearings  upon  the 
merits  of  the  case.  .  .  . 

"The  conflicting  laws  on  the  subject  of  allegiance  are  of  a 
municipal  character,  and  have  no  controlling  operation  beyond 
the  territorial  limits  of  jbhe_countries  enacting  them.  All  uncer- 
tainty sis  well  as  confusion  on  this  subject  is  avoided  by  giving 
due  consideration  to  the  fact  that  the  parties  to  the  question  now 
under  consideration  are  two  independent  nations,  and  that  neither 
has  the  right  to  appeal  to  its  own  municipal  laws  for  the  rules  to 
settle  the  matter  in  dispute,  which  occurred  within  the  jurisdic- 
tion of  a  third  independent  power. 

"Neither  Austrian  decrees  nor  American  laws  can  be  properly 
invoked  for  aid  or  direction  in  this  case,  but  international  law 
furnishes  the  rules  for  a  correct  decision,  and  by  the  light  from 
this  source  shed  upon  the  transaction  at  Smyrna  are  its  true  fea- 
tures to  be  discerned. 

"Koszta  being  beyond  the  jurisdiction  of  Austria,  her  laws 
were  entirely  inoperative  in  his  case,  unless  the  Sultan  of  Turkey 
has  consented  to  give  them  vigor  within  his  dominions  by  treaty 
stipulations.  The  law  of  nations  has  rules  of  its  own  on  the  sub- 
ject of  allegiance,  and  disregards,  generally,  all  restrictions  im- 
posed upon  it  by  municipal  codes. 

"This  is  rendered  most  evident  by  the  proceedings  of  independ- 
ent states  in  relation  to  extradition.  No  state  can  demand  from 
any  other,  as  a  matter  of  right,  the  surrender  of  a  native-born  or 
naturalized  citizen  or  subject,  an  emigrant,  or  even  a  fugitive 


SANTA  BARBARA  STATE  COLLEGE  LIBRA*/ 


302  BASIS  OF  PROTECTION 

from  justice,  unless  the  demand  is  authorized  by  express  treaty 
stipulation.  International  law  allows  no  such  claim,  though 
comity  may  sometimes  yield  what  right  withholds.  To  surrender 
political  offenders  (and  in  this  class  Austria  places  Koszta)  is  not 
a  duty;  but,  on  the  contrary,  compliance  with  such  a  demand 
would  be  considered  a  dishonorable  subserviency  to  a  foreign 
power,  and  an  act  meriting  the  reprobation  of  mankind.  As  ren- 
dering needless  all  further  argument  on  this  point,  the  undersigned 
will  recall  to  Mr.  Hiilsemann's  recollection  what  took  place  in 
1849  and  1850,  hi  relation  to  the  reclamation  of  Polish  refugees 
in  Turkey  by  Russia,  and  of  Hungarian  refugees  (of  whom  Koszta 
was  one)  by  Austria.  This  demand  was  made  in  concert,  as  it 
were,  by  two  powerful  sovereigns,  while  their  triumphant  armies, 
which  had  just  put  an  end  to  the  revolutionary  movements  in 
Hungary,  stood  upon  the  borders  of  Turkey,  with  power  to  erase 
her  name  from  the  list  of  nations.  She  might  well  apprehend  for 
herself,  as  the  nations  of  Western  Europe  apprehended  for  her, 
that  a  refusal  in  her  critical  condition  would  put  in  jeopardy  her 
existence  as  an  independent  power;  but  she  did  refuse,  and  the 
civilized  world  justified  and  commended  the  act.  Both  Austria 
and  Russia  placed  their  respective  demands  on  higher  grounds 
than  a  right  of  extradition  under  the  law  of  nations;  they  at- 
tempted to  strengthen  their  claim  by  founding  it  upon  the  obliga- 
tions of  existing  treaties  —  the  same,  undoubtedly,  that  are  now 
urged  upon  the  consideration  of  the  United  States.  Russia  and 
Austria,  however,  both  submitted  to  the  refusal,  and  never  pre- 
sumed to  impute  to  Turkey  the  act  of  refusal  as  a  breach  of  her 
duty  or  a  violation  of  their  rights.  .  .  . 

"It  is  to  be  regretted  that  this  claim  for  the  surrender  of  Koszta 
and  his  companions,  so  fully  considered  then  and  so  signally  over- 
ruled, should  be  again  revived  by  Austria  under  circumstances 
which  make  the  United  States  a  reluctant  party  in  the  contro- 
versy. .  *,«^ 

"Austria  appears  to  have  been  aware  that  her  right  to  seize 
Koszta  could  not  be  sustained  by  international  law,  and  she  has 
attempted  to  derive  it  from  certain  treaties,  or  'ancient  capitula- 
tions, by  treaty  and  usage.'  The  very  slight  and  inexplicit  manner 
in  which  this  authority  is  adverted  to  in  Mr.  Hiilsemann's  note 


THE  KOSZTA  CASE  303 

apparently  indicates,  if  not  a  want  of  confidence  in  it,  at  least 
a  desire  not  to  have  it  scrutinized.  ...  It  is  not  shown  or  al- 
leged that  new  treaty  stipulations  since  1849  have  been  entered 
into  by  Turkey  and  Austria.  The  'ancient  capitulations'  were 
relied  on  to  support  the  demand  in  that  year  for  the  surrender 
of  the  Hungarian  refugees;  they  were  scrutinized,  and  no  such 
authority  as  is  now  claimed  was  found  in  them.  ...  On  this  sub- 
ject it  is  allowable  to  resort  to  the  declarations  of  the  public  men 
of  the  Porte  as  evidence  in  regard  to  an  issue  of  this  kind. 
Their  explicit  denial  may  be  fairly  considered  as  equivalent 
to  Austria's  affirmation  without  proof,  where  proof,  if  it  ex- 
isted, could  be  so  easily  adduced.  .  .  .  There  is  now,  how- 
ever, something  more  decisive  from  Turkey  than  the  opinion 
of  her  public  men  in  opposition  to  this  treaty-claim  of  Austria. 
The  Government  of  the  Porte  has  pronounced  a  judgment  in 
relation  to  the  seizure  of  Koszta,  which  Austria  herself  is 
bound  to  respect.  It  has  protested  against  the  conduct  of  the 
Austrian  agents  in  that  affair  as  unlawful  and  as  a  violation 
of  its  sovereignty;  but  not  one  word  of  complaint,  not  a  murmur 
of  dissatisfaction,  from  Turkey  against  the  conduct  of  the  func- 
tionaries of  the  United  States  at  Smyrna  has  yet  reached  this 
government.  .  .  . 

"But  if^Austria  really  has  such  authority  by  treaties  as  she 
now  claims,  it  confessedly  extends  only  to  'Austrian  subjects.' 
...  By  the  consent  and  procurement  of  the  Emperor  of  Austria, 
Koszta  had  been  sent  into  perpetual  banishment.  The  Emperor 
was  a  party  to  the  expulsion  of  the  Hungarian  refugees  from  Tur- 
key. The  sovereign  by  such  an  act  deprives  his  subjects  to  whom 
it  is  appfiedf  of  all  their  rights  under  his  government.  He  places 
them  where  he  can  not,  if  he  would,  afford  them  protection.  By 
such  an  act  he  releases  the  subjects  thus  banished  from  the  bond 
of  allegiance.  .  .  . 

"The  proposition  that  Koszta  at  Smyrna  was  not  an  'Austrian 
subject'  can  be  sustained  on  another  ground.  By  a  decree  of  the 
Emperor  of  Austria,  of  the  24th  of  March,  1832,  Austrian  sub- 
jects leaving  the  dominions  of  the  Emperor  without  permission 
of  the  magistrate  and  a  release  of  Austrian  citizenship,  and  with 
an  intention  never  to  return,  become  'unlawful  emigrants,'  and 


304  BASIS  OF  PROTECTION 

lose  all  their  civil  and  political  rights  at  home.  (Ency.  Amer.,  tit. 
^Emigration,'  2  Kent's  Com.  50,  51.) 

"Koszta  had  left  Austria  without  permission,  and  with  the 
obvious  and  avowed  intention  never  to  return:  he  was,  therefore, 
within  the  strict  meaning  of  the  imperial  decree,  'an  unlawful 
emigrant.'  He  had  incurred  and  paid  the  penalty  of  that  offence 
by  the  loss  of  all  his  civil  and  political  rights.  ...  It  seems  to 
have  been  the  very  object  of  the  Austrian  decree  to  dissolve  the 
previous  political  connection  between  the  'unlawful  emigrant' 
and  the  Emperor.  In  Koszta's  case  it  was  dissolved.  .  .  . 

"The  undersigned  is  brought,  by  a  fair  application  of  sound 
principles  of  law,  and  by  a  careful  consideration  of  the  facts,  to 
this  important  conclusion:  that  those  who  acted  in  behalf  of 
Austria  had  no  right  whatever  to  seize  and  imprison  Martin 
Koszta. 

"It  will  be  conceded  that  the  civil  authority  of  Turkey,  during 
the  whole  period  of  the  occurrences  at  Smyrna,  was  dormant,  and 
in  no  way  called  into  action.  Under  these  circumstances  —  Aus- 
tria without  any  authority,  Turkey  exercising  none,  and  the 
American  functionaries,  as  Austria  asserts,  having  no  right  in 
behalf  of  their  government  to  interfere  in  the  affair,  (a  proposi- 
tion which  will  be  hereafter  contested)  —  what,  then,  was  the 
condition  of  the  parties  at  the  commencement  of  the  outrage  and 
through  its  whole  progress?  They  were  all,  in  this  view  of  the 
case,  without  the  immediate  presence  and  controlling  direction 
of  civil  or  international  law  in  regard  to  the  treatment  of  Koszta. 
The  Greek  hirelings,  Koszta,  their  victim,  and  the  Austrian  and 
American  agents,  were,  upon  this  supposition,  all  in  the  same 
condition  at  Smyrna,  in  respect  to  rights  and  duties,  so  far  as 
regards  that  transaction,  as  they  would  have  been  in  if  it  had  oc- 
curred in  their  presence  in  some  unappropriated  region  lying  far 
beyond  the  confines  of  any  sovereign  state  whatever;  they  were 
the  liege  subjects  of  the  law  of  nature,  moral  agents,  bound  each 
and  all  alike  to  observe  the  precepts  of  that  law,  and  especially 
that  which  is  confirmed  by  divine  sanction,  and  enjoins  upon  all 
men,  everywhere,  when  not  acting  under  legal  restraints,  to  do 
unto  others  whatsoever  they  would  that  others  should  do  unto 
them;  they  were  bound  to  do  no  wrong,  and,  to  the  extent  of  their 


THE  KOSZTA  CASE  305 

means,  to  prevent  wrong  from  being  done  —  to  protect  the  weak 
from  being  oppressed  by  the  strong,  and  to  relieve  the  distressed. 
In  the  case  supposed,  Koszta  was  seized  without  any  rightful  au- 
thority. He  was  suffering  grievous  wrong;  any  one  that  could, 
might  relieve  him.  To  do  so  was  a  duty  imposed,  under  the  pecul- 
iar circumstances  of  the  case,  by  the  laws  of  humanity.  Captain 
Ingraham,  in  doing  what  he  did  for  the  release  of  Koszta,  would, 
in  this  view  of  the  case,  be  fully  justified  upon  this  principle. 
Who,  in  such  a  case,  can  fairly  take  offence?  Who  have  a  right  to 
complain?  Not  the  wrongdoers,  surely  for  they  can  appeal  to  no 
law  to  justify  their  conduct;  they  can  derive  no  support  from 
civil  authority,  for  there  was  none  called  into  action;  nor  from  the 
law  of  nature,  for  that  they  have  violated. 

"To  place  the  justification  of  the  American  agents  still  further 
beyond  controversy,  the  undersigned  will  now  proceed  to  show 
that  Koszta,  when  he  was  seized  and  imprisoned  at  Smyrna,  had 
the  national  character  of  an  American,  and  the  Government  of 
the  United  States  had  the  right  to  extend  its  protection  over 

him.   .  .   . 

"  Mr.  Hiilsemann,  as  the  undersigned  believes,  falls  into  a  great 
error  —  an  error  fatal  to  some  of  his  most  important  conclusions 
—  by  assuming  that  a  nation  can  properly  extend  its  protection 
only  to  native  born  or  naturalized  citizens.  Thhisno^  the  doc- 
trine of  international  law,  nor  is  the  practice  of  nations  circum- 
scribed within  such  narrow  limits.  ...  It  is  a  maxim  of  inter- 
national law  that  domicile  confers  a  national  character;  it  does  not 
allow  any  one  who  has  a  domicile  to  decline  the  national  charac- 
ter thus  conferred;  it  forces  it  upon  him  often  very  much  against 
his  will,  and  to  his  great  detriment.  International  law  looks  only 
to  the  national  character  in  determining  what  country  has  the 
right  to  protect.  If  a  person  goes  from  this  country  abroad,  with 
the  nationality  of  the  United  States,  this  law  enjoins  upon  other 
nations  to  respect  him,  in  regard  to  protection,  as  an  American 
citizen.  It  concedes  to  every  country  the  right  to  protect  any  and 
all  who  may  be  clothed  with  its  nationality.  These  are  important 
principles  in  their  bearings  upon  the  questions  presented  in  Mr. 
Hlilsemann's  note,  and  are  too  obvious  to  be  contested;  but  as 
they  are  opposed  to  some  of  the  positions  taken  by  Austria,  the 


306  BASIS  OF  PROTECTION 

undersigned  deems  it  respectful  in  such  a  case  to  sustain  them  by 
reference  to  authorities. 

"'The  position  is  a  clear  one,  that  if  a  person  goes  into  a  foreign 
country  and  engages  hi  trade  there,  he  is,  by  the  law  of  nations, 
to  be  considered  a  merchant  of  that  country,  and  a  subject  for  all 
civil  purposes,  whether  that  country  be  hostile  or  neutral.'  (i 
Kent's  Com.  75.) 

"Again:  the  same  authority  says  that  'in  the  law  of  nations,  as 
to  Europe,  the  rule  is,  that  men  take  their  national  character 
from  the  general  character  of  the  country  in  which  they  reside.' 
(Ibid.  78.)  .  .  . 

"The  most  approved  definitions  of  a  domicile  are  the  fol- 
lowing: 

"'A  residence  at  a  particular  place,  accompanied  with  positive 
or  presumptive  proof  of  continuing  there  for  an  unlimited  time.' 
(i  Binney's  Reports,  349.)  'If  it  sufficiently  appear  that  the  in- 
tention of  removing  was  to  make  a  permanent  settlement,  or  for 
an  indefinite  time,  the  right  of  domicile  is  acquired  by  a  residence 
of  a  few  days.'  (The  Venus,  8  Cranch,  279.)  'Vattel  has  defined 
domicile  to  be  a  fixed  residence  in  any  place,  with  an  intention  of 
always  staying  there.  But  this  is  not  an  accurate  statement.  It 
would  be  more  correct  to  say  that  that  place  is  properly  the  domi- 
cile of  a  person  in  which  his  habitation  is  fixed,  without  any  pres- 
ent intention  of  removing  therefrom.'  (Story's  Con.  of  Laws,  §  43.) 
'A  person  who  removes  to  a  foreign  country,  settles  himself  there, 
and  engages  in  the  trade  of  the  country,  furnishes  by  these  acts 
sucii  evidence  of  an  intention  permanently  to  reside  there  as  to 
stamp  him  with  the  national  character  of  the  state  where  he  re- 
sides.' (The  Venus,  8  Cranch,  279.) 

"Apply  these  principles  to  the  case  under  consideration,  and 
the  inevitable  result  is  that  Koszta  had  a  domicile  in  the  United 
States.  He  came  to  and  resided  in  this  country  one  year  and 
eleven  months.  He  came  here  with  the  intention  of  making  it  his 
future  abode.  This  intention  was  manifested  in  several  ways,  but 
most  significantly  by  his  solemn  declaration  upon  oath.  There 
can  be  no  better  evidence  of  his  design  of  making  the  United 
States  his  future  home  than  such  a  declaration;  and  to  this  kind 
of  evidence  of  the  intention,  the  indispensable  element  of  true 


THE  KOSZTA  CASE  307 

domicile,  civilians  have  always  attached  importance.  (Philli- 
more,  §  188.)  .  .  . 

"The  establishment  of  his  domicile  here  invested  him  with  the 
national  character  of  this  country,  and  with  that  character  he  ac- 
quired the  right  to  claim  protection  from  the  United  States,  and 
they  had  the  right  to  extend  it  to  him  as  long  as  that  character 
continued. 

"The  next  question  is,  Was  Koszta  clothed  with  that  char- 
acter when  he  was  kidnapped  in  the  streets  of  Smyrna,  and  im- 
prisoned on  board  of  the  Austrian  brig-of-war  Huszar?  The 
national  character  acquired  by  residence  remains  as  long  as  the 
domicile  continues.  .  .  .  To  lose  a  domicile  when  once  obtained, 
the  domiciled  person  must  leave  the  country  of  his  residence  with 
the  intention  to  abandon  that  residence,  and  must  acquire  a 
domicile  in  another.  Both  of  these  facts  are  necessary  to  effect  a 
change  of  domicile;  but  neither  of  them  exists  in  Koszta's  case. 
The  facts  show  that  he  was  only  temporarily  absent  from  this 
country  on  private  business,  with  no  intention  of  remaining  per- 
manently in  Turkey,  but,  on  the  contrary,  was  at  the  time  of 
his  seizure  awaiting  an  opportunity  to  return  to  the  United 
States.  .  .  . 

"This  right  to  protect  persons  having  a  domicile,  though  not 
native-born  or  naturalized  citizens,  rests  on  the  firm  foundation 
of  justice,  and  the  claim  to  be  protected  is  earned  by  considera- 
tions which  the  protecting  power  is  not  at  liberty  to  disregard. 
Such  domiciled  citizen  pays  the  same  price  for  his  protection  as 
native-born  or  naturalized  citizens  pay  for  theirs.  He  is  under 
the  bonds  of  allegiance  to  the  country  of  his  residence,  and  if  he 
breaks  them  incurs  the  same  penalties;  he  owes  the  same  obedience 
to  the  civil  laws,  and  must  discharge  the  duties  they  impose  on 
him;  his  property  is  in  the  same  way,  and  to  the  same  extent  as 
theirs,  liable  to  contribute  to  the  support  of  the  government.  In 
war  he  shares  equally  with  them  in  the  calamities  which  may  be- 
fall the  country;  his  services  may  be  required  for  its  defence;  his 
life  may  be  perilled  and  sacrificed  in  maintaining  its  rights  and 
vindicating  its  honor.  In  nearly  all  respects  his  and  their  condi- 
tion as  to  the  duties  and  burdens  of  government  are  undistin- 
guishable;  and  what  reasons  can  be  given  why,  so  far  at  least  as 


308  BASIS  OF  PROTECTION 

regards  protection  to  person  and  property  abroad  as  well  as  at 
home,  his  rights  should  not  be  coextensive  with  the  rights  of  native- 
born  or  naturalized  citizens?  By  the  law  of  nations  they  have  the 
same  nationality;  and  what  right  has  any  foreign  power,  for  the 
purpose  of  making  distinction  between  them,  to  look  behind  the 
character  given  them  by  that  code  which  regulates  national  inter- 
course? When  the  law  of  nations  determines  the  nationality  of 
any  man,  foreign  governments  are  bound  to  respect  its  deci- 
sion. .  .  . 

"There  is  another  view  of  this  case  which  places  the  conduct  of 
the  agents  of  this  government  at  Smyrna  upon  equally  defensible 
grounds.  .  .  . 

"By  the  laws  of  Turkey  and  other  eastern  nations,  the  con- 
sulates therein  may  receive  under  their  protection  strangers  and 
sojourners  whose  religion  and  social  manners  do  not  assimilate 
with  the  religion  and  manners  of  those  countries.  The  persons 
thus  received  become  thereby  invested  with  the  nationality  of  the 
protecting  consulate.  These  consulates  and  other  European  es- 
tablishments in  the  East,  are  in  the  constant  habit  of  opening 
their  doors  for  the  reception  of  such  inmates,  who  are  received 
irrespective  of  the  country  of  their  birth  or  allegiance.  It  is  not 
uncommon  for  them  to  have  a  large  number  of  such  proteges.  In- 
ternational law  recognizes  and  sanctions  the  rights  acquired  by 
this  connection.  « 

"'In  the  law  of  nations  as  to  Europe,  the  rule  is,  that  men  take 
their  national  character  from  the  general  character  of  the  country 
hi  which  they  reside;  and  this  rule  applies  equally  to  America. 
But  in  Asia  and  Africa  an  immiscible  character  is  kept  up,  and 
Europeans  trading  under  the  protection  of  a  factory  take  their 
national  character  from  the  establishment  under  which  they  live 
and  trade.  This  rule  applies  to  those  parts  of  the  world  from  ob- 
vious reasons  of  policy,  because  foreigners  are  not  admitted  there, 
as  in  Europe  "and  the  western  part  of  the  world,"  into  the  general 
body  and  mass  of  the  society  of  the  nation,  but  they  continue 
strangers  and  sojourners,  not  acquiring  any  national  character 
under  the  general  sovereignty  of  the  country.'  (i  Kent's  Com. 
78-79.) 

"The  Lords  of  Appeals  in  the  High  Court  of  Admiralty  in 


THE  KOSZTA  CASE  309 

England  decided  in  1784,  that  a  merchant  carrying  on  trade  at 
Smyrna,  under  the  protection  of  a  Dutch  Consul,  was  to  be  con- 
sidered a  Dutchman  as  to  his  national  character.  (Wheaton's 
Inter.  Law,  384;  3  Rob.  Adm.  Reports,  12.) 

"This  decision  has  been  examined  and  approved  by  the  emi- 
nent jurists  who  have  since  written  treatises  on  international 
law. 

"According  to  the  principle  established  in  this  case,  Koszta 
was  invested  with  the  nationality  of  the  United  States,  if  he  had 
it  not  before,  the  moment  he  was  under  the  protection  of  the 
American  Consul  at  Smyrna  and  the  American  Legation  at  Con- 
stantinople. That  he  was  so  received  is  established  by  the  tezkereh 
they  gave  him,  and  the  efforts  they  made  for  his  release.  .  .  . 

"Having  been  received  under  the  protection  of  these  American 
establishments,  he  had  thereby  acquired,  according  to  the  law  of 
nations,  their  nationality;  and  when  wronged  and  outraged  as  he 
was,  they  might  interpose  for  his  liberation,  and  Captain  Ingra- 
ham  had  a  right  to  cooperate  with  them  for  the  accomplishment  of 
that  object.  The  exceptions  taken  to  the  manner  of  that  coopera- 
tion remain  to  be  considered.  .  .  . 

"It  has  excited  some  surprise  here  that,  after  a  consideration  of 
the  circumstances,  an  impression  should  be  entertained  in  any 
quarter  that  Captain  Ingraham  either  committed  or  meditated 
hostility  towards  Austria  on  that  occasion.  .  .  .  The  first  aggres- 
sive act  in  this  case  was  the  seizure  of  Koszta  at  Smyrna,  com- 
mitted by  the  procurement  of  the  Austrian  functionaries;  the  first 
improper  use  of  a  national  ship,  the  imprisonment  of  Koszta 
therein,  was  made  by  the  commander  of  the  Austrian  brig  Huszar. 
That  ship  was  converted  into  a  prison  for  the  illegal  detention  of 
a  person  clothed  with  the  nationality  of  the  United  States,  and 
consequently  entitled  to  their  protection.  If  Austria  upholds,  as 
it  appears  she  does,  the  conduct  of  the  commander  of  the  Huszar, 
she  is  in  fact  the  first  aggressor.  This  act  of  the  commander  of  the 
Huszar  led  to  the  series  of  other  acts  which  constitute  the  ground 
of  complaint  against  the  United  States.  .  .  . 

"There  is  a  consideration  probably  not  brought  to  the  notice  of 
Austria,  and  not  suffiicently  regarded  by  others,  which  places  the 
acts  of  Captain  Ingraham  in  a  true  light,  and  repels  the  inference 


310  BASIS  OF  PROTECTION 

of  intended  hostile  demonstrations  towards  Austria.  It  was  the 
understanding  of  the  parties  that  Koszta  should  be  retained  at 
Smyrna  while  the  question  of  his  nationality  was  pending.  Cap- 
tain Ingraham  received  satisfactory  evidence  of  a  design,  on  the 
part  of  the  Austrian  functionaries  at  Smyrna  and  Constantinople, 
to  disregard  this  arrangement,  and  remove  him  clandestinely  from 
the  Huszar  on  board  of  a  steamer,  for  the  purpose  of  taking  him  to 
Trieste.  .  .  .  The  captain  of  the  St.  Louis  was  placed  hi  the  per- 
plexing alternative  of  surrendering  their  captive,  without  further 
efforts,  to  the  sad  fate  which  awaited  him,  or  to  demand  his  im- 
mediate release,  and,  in  case  of  refusal,  to  enforce  it.  ...  It  is 
not  just  to  Captain  Ingraham  to  look  at  the  affair  as  it  was  at  the 
precise  point  of  time  when  the  demand  for  the  release  of  Koszta 
was  made.  The  antecedent  events  qualify  and  legalize  that  act. 
The  Austrian  functionaries  had  obtained  the  possession  of  the  per- 
son of  Koszta,  not  in  a  fair  or  allowable  way,  but  by  violating  the 
civil  laws  of  Turkey  and  the  rights  of  humanity.  Under  these  cir- 
cumstances, their  custody  of  him  was  entitled  to  no  respect  from 
the  agent  of  the  government  which,  by  virtue  of  his  nationality, 
had  a  right  to  protect  him.  .  .  . 

"The  undersigned  yields  a  ready  assent  to  that  part  of  Mr. 
Hiilsemann's  note  relative  to  the  war-making  power.  The  doctrine 
contained  in  it  is  sound,  and  well  sustained  by  most  approved 
authorities;  but  the  undersigned  has  not  been  able  to  discover  its 
applicability  to  the  case  under  consideration.  .  .  . 

"Before  closing  this  communication  the  undersigned  will  briefly 
notice  the  complaint  of  Austria  against  Captain  Ingraham  for 
violating  the  neutral  soil  of  the  Ottoman  Empire.  The  right  of 
Austria  to  call  the  United  States  to  an  account  for  the  acts  of  their 
agents  affecting  the  sovereign  territorial  rights  of  Turkey  is  not 
perceived,  and  they  do  not  acknowledge  her  right  to  require  any 
explanation. 

"If  anything  was  done  at  Smyrna  in  derogation  of  the  sover- 
eignty of  Turkey,  this  government  will  give  satisfactory  explana- 
tion to  the  Sultan  when  he  shall  demand  it,  and  it  has  instructed 
its  minister  resident  to  make  this  known  to  him.  He  is  the  judge, 
and  the  only  rightful  judge,  in  this  affair,  and  the  injured  party  too. 
He  has  investigated  its  merits,  pronounced  judgment  against 


THE  CASE  OF  DUBUC  311 

Austria,  and  acquitted  the  United  States;  yet,  strange  as  it  is, 
Austria  has  called  the  United  States  to  an  account  for  violating 
the  sovereign  territorial  rights  of  the  Emperor  of  Turkey.. .  .  . 

"The  President  does  not  see  sufficient  cause  for  disavowing  the 
acts  of  the  American  agents  which  are  complained  of  by  Austria. 
Her  claim  for  satisfaction  on  that  account  has  been  carefully 
considered,  and  is  respectfully  declined. 

"Being  convinced  that  the  seizure  and  imprisonment  of  Koszta 
were  illegal  and  unjustifiable,  the  President  also  declines  to  give 
his  consent  to  his  delivery  to  the  Consul-General  of  Austria  at 
Smyrna;  but,  after  a  full  examination  of  the  case,  as  herein  pre- 
sented, he  has  instructed  the  undersigned  to  communicate  to  Mr. 
Hiilsemann  his  confident  expectation  that  the  Emperor  of  Austria 
will  take  the  proper  measures  to  cause  Martin  Koszta  to  be  re- 
stored to  the  same  condition  he  was  in  before  he  was  seized  in  the 
streets  of  Smyrna  on  the  2ist  of  June  last." 

President  Pierce,  in  his  annual  message  of  December  5,  1853, 
refers  to  this  incident:  "Under  an  arrangement  between  the  agents 
of  the  United  States  and  of  Austria,  he  [Koszta]  was  transferred 
to  the  custody  of  the  French  Consul-General  at  Smyrna,  there  to 
remain  until  he  should  be  disposed  of  by  the  mutual  agreement  of 
the  consuls  of  the  respective  governments  at  that  place.  Pursuant 
to  that  agreement,  he  has  been  released,  and  is  now  in  the  United 
States." 

(Moore:  Digest  of  International  Law,  vol.  m,  pp.  824-35.) 


§35.  NATIONALITY  OF  INDIVIDUALS 


THE  CASE  OF  DUBUC   (1910) 

The  Secretary  of  State  to  Ambassador  Bacon 

DEPARTMENT  OP  STATE, 
Washington,  February  16,  1910. 

Sir:  I  enclose  a  copy  of  a  letter  addressed  to  this  Department 
on  January  31,  1910,  by  Mr.  John  Gibson  Hale,  of  Chicago,  111., 
inquiring  whether  Mr.  R6n6  Dubuc,  who  was  born  in  France,  has 


312  NATIONALITY  OF  INDIVIDUALS 

not  yet  attained  his  majority,  and  claims  citizenship  of  the  United 
States  through  the  naturalization  of  his  father,  may  visit  his  native 
land  without  fear  of  molestation  on  account  of  the  military-service 
laws.  You  will  note  that  Mr.  Hale  states  that  some  time  ago  he 
addressed  the  French  Minister  of  Justice  in  this  matter,  but  has 
received  no  response  to  his  letter. 

The  Department  desires  you  to  present  this  case  to  the  French 
Government,  explaining  that  Mr.  Dubuc  was  naturalized  as  a 
citizen  of  the  United  States  through  the  naturalization  of  his 
father  under  our  law.  You  will  inquire  whether  he  would  be  held 
liable  to  perform  military  service  should  he  place  himself  within 
French  jurisdiction  for  a  short  time. 

I  am,  etc.,  P.  C.  EJSTOX. 

Ambassador  Bacon  to  the  Secretary  of  State 

AMERICAN  EMBASSY, 
Paris,  March  24, 


Sir:  Referring  to  the  Department's  No.  29,  of  February  16, 
1910,  1  have  the  honor  to  forward  herewith  a  copy  and  translation 
of  the  note  dated  March  10,  with  memorandum,  which  I  received 
from  the  Minister  of  Foreign  Affairs  in  reply  to  my  query  in  pur- 
suance of  your  instructions.  .  .  . 

As  you  will  observe  in  the  above-mentioned  memorandum,  in 
the  absence  of  conventions  the  French  tribunals  declare  to  be 
French  minor  children  of  French  parents  naturalized  in  foreign 
countries  during  their  minority.  Mr.  Dubuc,  according  to  French 
law,  is  therefore  French,  and  consequently  subject  to  all  the  obliga- 
tions of  a  Frenchman,  notably  those  of  military  service.  His 
naturalization  abroad  will  not  cause  him  to  lose  his  quality  of 
Frenchman  except  if  it  has  been  authorized  by  the  French  Gov- 
ernment. (Art.  17,  par.  2,  of  the  Civil  Code.) 

Mr.  Pichon  further  states  that  the  Keeper  of  the  Seals,  after 
informing  him  that  Mr.  Dubuc  solicited,  through  the  medium  of 
Mr.  John  Gibson  Hale,  attorney  and  counselor,  Marquette  Build- 
ing, Chicago,  the  necessary  authorization  to  become  an  American 
citizen,  in  order  that  his  naturalization  be  recognized  in  France, 
has  requested  him  to  inform  the  petitioner  that  by  reason  of  his 


THE  CASE  OF  DUBUC  313 

minority,  he  being  born  in  Paris  on  February  20,  1890,  he  could 
not  now  be  authorized  to  change  his  nationality,  and  that  after 
the  26th  of  February,  1911,  when  he  will  have  attained  his  major- 
ity, if  he  persists  in  his  intention,  he  should  renew  his  request  and 
annex  thereto  his  birth  certificate,  that  of  his  father,  and  the  natu- 
ralization papers  of  the  latter. 

In  compliance  with  this  request  the  Minister  of  Foreign  Affairs 
states  that  he  has  instructed  the  French  Consul  at  Chicago  to 
bring  to  the  notice  of  Mr.  Dubuc  the  above  information. 

I  have,  etc.,  ROBERT  BACON. 

[The  translated  memorandum  communicated  to  Mr.  Bacon  by 
the  French  Minister  of  Foreign  Affairs  is  as  follows:] 

According  to  the  terms  of  Article  vm  §  i  of  the  French  Code,  is 
French  — 

Every  individual  born  of  a  Frenchman  in  France  or  abroad. 

Foreign  naturalization  obtained  by  a  French  father  only  pro- 
duces, according  to  French  legislation,  strictly  individual  results 
and  is  inoperative  with  a  view  to  changing  the  French  nationality 
of  his  minor  children  born  before  his  naturalization,  even  though 
the  legislation  of  certain  foreign  countries  admits  that  the  naturali- 
zation of  the  head  of  the  family  produces  a  collective  effect  and 
extends  by  right  to  his  wife  and  his  minor  children. 

In  this  case  there  is  a  conflict  of  laws  —  a  conflict  which  each 
sovereign  and  independent  nation  settles  by  making  the  national 
law  prevail  in  its  territory  over  the  foreign  law. 

France  has  concluded  with  certain  states  —  notably  Switzer- 
land (Convention  of  July  23,  1879)  and  Belgium  (Convention  of 
July  23,  1891)  — conventions  with  a  view  to  the  settlement  of 
the  conflict  of  laws  of  this  nature  by  the  recognition  for  the  benefit 
of  minors  of  a  right  of  option  for  the  nationality  of  their  parents  at 
their  majority. 

No  convention  of  this  nature  exists  between  France  and  the 
United  States. 

In  the  absence  of  conventions  the  French  tribunals,  sole  judges 
of  questions  of  nationality,  declare  to  be  French  minor  children 
of  French  parents  naturalized  foreigners  during  their  minority. 
In  this  sense  may  be  cited,  notably: 


314  NATIONALITY  OF  INDIVIDUALS 

The  decision  of  the  court  of  Besangon  of  July  30,  1902.  (Gide 
case,  J.  Dr.  Int.  Pr.  [1903],  p.  370.) 

A  decision  of  the  Court  of  Appeal  of  Amiens  of  July  13,  1899 
(Vacquerel  case,  /.  Dr.  Int.  Pr.  [1902],  p.  837),  has  moreover 
established  that  a  child  born  in  the  United  States  of  a  French 
father  who  had  taken  out  his  naturalization  papers,  but  who  was 
not  yet  naturalized,  was  French,  as  being  born  of  a  father  who  had 
not  yet  lost  his  quality  of  Frenchman  at  the  time  of  his  birth. 

The  child  remaining  French  continues,  moreover,  subject  to  all 
the  obligations  of  a  Frenchman,  notably  those  of  military  service. 

If  he  is  still  subject  to  military  service  for  the  active  army  his 
naturalization  abroad  will  not  cause  him  to  lose  quality  of  French- 
man except  if  his  naturalization  has  been  authorized  by  the  gov- 
ernment (art.  17,  par.  2,  of  the  Civil  Code). 
\ 

The  Secretary  of  State  to  Ambassador  Bacon 

DEPARTMENT  OF  STATE, 
Washington,  November  n,  IQIO. 

Sir:  .  .  .  The  Department  desires  that  you  ascertain,  if  pos- 
sible, and  report  as  to  what  fee,  if  any,  must  accompany  Mr. 
Dubuc's  request  for  authorization  to  relinquish  French  national- 
ity. The  Department  also  desires  to  be  informed  to  what  official 
Mr.  Dubuc's  request  should  be  addressed. 

I  am,  etc.,  P.  C.  KNOX. 

Ambassador  Bacon  to  the  Secretary  of  State 

AMERICAN  EMBASSY, 

Paris,  November  30,  /pro. 

Sir:  Referring  to  your  instruction  No.  159  of  November  n, 
1910,  relative  to  the  nationality  of  Rene  Dubuc,  I  have  the  honor 
to  inform  you  that  upon  inquiry  at  the  Foreign  Office  I  learn  that, 
in  order  for  Mr.  Dubuc  to  relinquish  his  French  nationality,  when 
he  becomes  of  age  it  will  be  necessary  for  him  to  apply,  through 
the  French  Consul  at  Chicago,  to  the  Minister  of  Justice  for  such 
authorization,  and  at  the  same  time  to  pay  a  fee  of  637  francs. 

I  have,  etc.,  ROBERT  BACON. 

(Foreign  Relations  of  the  United  States,  ipio,  pp.  514-16'.) 


JUS  SANGUINIS  AND  JUS  SOLI  IN  CHILE  315 

JUS  SANGUINIS  AND  JUS  SOLI  IN  CHILE  (1907) 
Charge  Janes  to  the  Secretary  of  State 

AMERICAN  LEGATION, 
Santiago,  August  5, 1907. 

Sir:  I  have  the  honor  to  transmit  herewith  a  copy  of  an  inter- 
esting decision  handed  down  on  the  i8th  of  July  by  the  Court  of 
Appeals  of  Santiago.  In  this  it  is  decided  that  a  child  born  in 
Chile  of  Spanish  parents  is  not  necessarily  a  Chilean  citizen,  and 
that  therefore  the  laws  prescribing  military  service  for  all  citizens 
of  this  country  cannot  be  enforced  against  him.  This  marks  a 
triumph  of  the  principle  of  the  jus  sanguinis  over  ihejus  soli. 

The  facts  of  the  case  are  as  follows: 

A  minor,  the  son  of  Spanish  parents,  Hector  Garcia  by  name, 
was  summoned  to  do  military  service  according  to  the  Chilean 
laws.  Garcia  refused  to  enroll  himself  as  a  Chilean  soldier,  stat- 
ing that,  although  he  was  born  in  Chile,  he  was  a  Spanish  subject, 
and  as  such  the  duty  of  military  service  in  Chile  could  not  be  de- 
manded of  him.  Whereupon  he  was  brought  before  a  lower  court 
and  sentenced  to  thirty  days'  confinement  in  jail. 

Appeal  was  then  taken  from  this  decision  to  the  higher  court. 

It  appears  that  the  appellant  had  been  registered  in  the  Spanish 
Legation  by  his  parents  and  that  this  entry  had  been  duly  trans- 
mitted and  reported  to  the  Spanish  Foreign  Office.  According  to 
the  Spanish  Constitution  the  children  of  Spanish  parents  are  Span- 
ish citizens,  whether  the  birthplace  of  the  offspring  be  Spain  or  a 
foreign  country.  On  the  other  hand,  all  persons  born  in  Chile  are 
declared  by  article  6  of  the  Chilean  Constitution  citizens  of  that 
country.  In  this  conflict  of  the  fundamental  laws  of  the  two 
countries  the  court  adopted  the  opinion  of  the  great  commentator 
of  the  Chilean  Constitution,  Senor  Jorje  Huneeus,  according  to 
whom,  "in  spite  of  the  imperative  terms  hi  which  the  clause  head- 
ing this  article  [clause  i,  article  5]  is  written,  it  does  not  impose 
the  character  of  Chilean  citizenship,  but  only  offers  it  to  those  who, 
possessing  the  qualifications  enumerated  in  the  different  pro- 
visions included  in  this  article,  are  freely  willing  to  accept  it,  when, 
at  the  same  time,  the  citizenship  of  another  country  is  offered  to 


316  NATIONALITY  OF  INDIVIDUALS 

them  by  the  legislation  in  force  in  the  latter."  The  parents  of 
Hector  Garcia  made  use  of  the  right  of  election  possessed  by  their 
son  by  registering  him  in  the  Spanish  Legation. 

The  clerk  of  the  court  states  that  the  government  will  not 
carry  the  case  further,  but  accepts  the  decision  as  it  stands. 

I  have,  etc., 

HENRY  L.  JANES. 

(Foreign  Relations  of  the  United  States,  ipo/,  pp.  124-25.) 


THE  CANEVARO  CLAIM 
ITALY  v.  PERU 

The  Permanent  Court  of  Arbitration  at  The  Hague,  1912 

THIS  case,  as  far  as  the  issue  involved  is  concerned,  is  one  of 
the  least  important  of  the  dozen  or  so  that  have  been  referred  to 
The  Hague;  but  the  fact  that  Peru  was  willing  to  submit  her 
domes»law  to  the  interpretation  of  an  arbitral  tribunal  reveals 
the  possible  extent  of  jurisdiction  that  may  attach  in  time  to  an 
international  supreme  court. 

The  subject-matter  of  the  case  was  the  claim  of  the  brothers 
Canevaro  for  the  payment  of  a  debt  owing  them  by  the  Peruvian 
Government.  The  history  of  the  financial  and  legal  transactions 
leading  up  to  the  submission  of  the  claim  to  The  Hague  is  as 
follows: 

In  1880,  the  Government  of  Peru,  then  under  the  dictatorship 
of  Pierola,  borrowed  from  the  firm  of  Jose  Canevaro  &  Sons,  of 
Lima,  the  sum  of  £77,000,  to  meet  which  were  created  pay  checks 
for  that  amount,  payable  at  various  periods.  But  the  payments 
were  not  made  as  stipulated,  because  of  dvil  disorders. 

In  1883,  on  the  death  of  Jose  Canevaro,  the  firm  was  dissolved, 
but  in  1885  it  was  restored  under  the  same  name,  the  members 
composing  it  being  Jose  Francisco  and  Cesar  Canevaro,  both  of 
whom  were  of  Peruvian  nationality,  and  Raphael  Canevaro,  who 
could  claim  double  nationality,  having  been  born  in  Peru  of  an 
Italian  father.  The  same  year  (1885)  a  payment  of  £35,000  was 
made  on  this  debt,  leaving  £43,140  unpaid.  By  various  measures 
between  1886  and  1898,  the  Peruvian  Government,  in  view  of  the 


THE  CANEVARO  CLAIM  317 

depressed  state  of  the  national  finances,  placed  the  domestic  debt 
under  severe  regulation  and  provided  for  the  redemption  of  its 
bonds  on  terms  unfavorable  to  the  creditors.  In  order  to  dis- 
credit all  acts  of  Pierola,  the  government,  by  a  law  of  October  26, 
1886,  announced  that  it  would  acknowledge  only  obligations 
issued  by  the  national  bureaus  up  to  January,  1880.  The  Cane- 
varo  transactions  with  Pierola  dated  from  December  23,  1880, 
and  hence,  on  a  literal  interpretation  of  the  law,  might  have 
been  invalidated;  but  as  was  pointed  out  by  the  tribunal  in  its 
award,  the  terms  of  the  agreement  to  arbitrate  indicated  that  the 
Peruvian  Government  had  not  excluded  this  claim  from  the 
consideration  accorded  to  the  financial  measures  antedating  "• 
Pierola's  regime. 

On  June  12,  1889,  provision  was  made  by  the  government  to 
pay  off  the  domestic  debt  by  issuing  one  per  cent  bonds.  At  that 
time  the  Canevaro  company  and  its  claim  were  undoubtedly 
Peruvian  and  thus  came  within  the  scope  of  the  law  reducing  the 
value  of  any  claim  nationally  owned.  9 

In  1890  the  company  requested  payment  for  the  amount  out- 
standing, and  in  1891  further  pressed  its  claim,  invoking  in  its 
favor  article  14  of  the  law  of  June  12,  1889,  which  provided  more 
liberal  treatment  for  that  part  of  the  Peruvian*  debt  created  to 
provide  for  military  measures  against  Chile.  But  the  Peruvian 
tribunals  did  not  give  the  firm  the  benefit  of  this  provision,  be- 
cause the  obligation  had  been  incurred,  not  for  supplies  furnished, 
but  to  repay  previous  drafts. 

The  company  ceased  to  exist  in  1900,  on  the  death  of  Jose 
Francisco  Canevaro,  and  the  ownership  of  the  claim  in  question 
passed  to  the  brothers  Napoleon,  Carlo,  and  Raphael  Canevaro, 
the  first  two  of  whom  were  Italians.  It  was  by  virtue  of  their 
nationality  that  Italy  became  interested  in  the  payment  of  the 
claim,  with  the  result  that,  on  April  25,  1910,  the  Governments  of 
Italy  and  Peru  made  an  agreement  to  submit  the  Canevaro  claim 
to  arbitration,  and  a  special  tribunal  of  three,  cwistituted  under 
the  agreement,  met  at  The  Hague  on  April  20,  1912.  The 
arbitrators  were  M.  Fusinato,  of  Italy,  M.  Calderon,  Peru- 
vian Minister  at  Brussels,  and  M.  Renault,  of  Paris,  who  was 
President. 


3l8  NATIONALITY  OF  INDIVIDUALS 

The  questions  submitted  to  the  tribunal  were  as  follows: 

"Ought  the  Peruvian  Government  to  pay  in  coin,  or  in  accord- 
ance  with  the  provisions  of  the  Peruvian  law  on  the  domestic 
debt  of  June  12,  1889,  the  drafts  (lettres  d  ordre,  cambiali,  libra- 
mientos)  now  in  the  possession  of  the  brothers  Napoleon,  Carlo, 
and  Raphael  Canevaro,  and  which  were  drawn  by  the  Peruvian 
Government  to  the  order  of  the  firm  of  Jose  Canevaro  &  Sons  for 
the  sum  of  43,140  pounds  sterling,  plus  the  legal  interest  on  the 
said  amount? 

"Have  the  Canevaro  brothers  a  right  to  demand  the  total  of 
the  amount  claimed? 

"Has  Count  Raphael  Canevaro  a  right  to  be  considered  as  an 
Italian  claimant?" 

The  tribunal  rendered  its  award  May  3,  1912.  Addressing 
itself  to  the  third  question  first,  it  decided  that,  in  the  matter  of 
the  nationality  of  Raphael  Canevaro,  "the  Government  of  Peru 
has  a  right  to  consider  him  as  a  Peruvian  citizen  and  to  deny  his 
status  as  an  Italian  claimant."  He  had  been  born  in  Peru,  and 
thus  by  Peruvian  law  was  a  Peruvian,  though  by  jus  sanguinis 
Italy  might  also  claim  him.  The  decisive  fact,  for  the  tribunal, 
was  the  exercise  of  Peruvian  citizenship  by  Raphael;  he  had  been 
a  candidate  for  the  Senate,  and  had  even  acted  abroad  in  the 
Peruvian  consular  service.  This  decision  as  to  Raphael's  national- 
ity answered  the  second  question,  in  effect;  for  it  followed  that 
the  tribunal  had  to  pass  judgment  upon  the  claim  only  in  so  far 
as  it  was  owned  by  the  brothers  of  Italian  nationality. 

The  main  question  —  the  method  of  payment  —  depended 
upon  the  significance  of  the  nationality  of  the  two  Italian  claim- 
ants. Did  the  succession  of  Italians  to  the  partial  ownership  of 
what,  when  the  law  of  1889  was  enacted,  was  a  wholly  Peruvian 
claim,  remove  their  share  of  the  claim  from  the  operation  of 
domestic  law  and  require  payment  in  gold?  That  the  Canevaro 
debt  was  subject  to  domestic  law  was  acknowledged,  in  the 
opinion  of  the  tribunal,  by  the  Canevaro  firm  itself  when  in  1891 
it  invoked  article  14  of  the  law  in  question  in  order  to  get  prefer- 
ential treatment.  The  fact  that  the  certificates  issued  in  1880 
were  to  order  and  payable  in  pounds  sterling  did  not  give  the  debt 
the  status  of  a  foreign  holding,  for  it  was  a  question  "of  a  settle- 


THE  CANEVARO  CLAIM  319 

ment  of  a  domestic  nature  of  evidences  of  debt  created  at  Lima 
and  payable  at  Lima,  in  compensation  for  a  payment  made 
voluntarily  in  behalf  of  the  Peruvian  Government;"  and  there 
was  nothing  hi  the  circumstances  attending  the  debt  "to  prevent 
the  Peruvian  law  from  being  applicable  to  evidences  of  debt 
created  and  payable  in  the  territory  in  which  said  law  governed." 
Thus  only  the  change  in  ownership,  if  anything,  could  alter  the 
method  of  payment  prescribed. 

On  this  point,  however,  the  tribunal  held  that  the  Italian 
claimants  had  merely  the  rights  that  they  had  obtained  from  the 
original  owners,  and  that,  too,  whether  succession  were  by  en- 
dorsement or  inheritance.  According  to  the  Peruvian  Code  of 
Commerce  of  1902,  "Endorsement  subsequent  to  maturity  is  to 
have  the  force  only  of  an  ordinary  conveyance,"  while  it  is  a 
general  rule,  the  tribunal  pointed  out,  "that  heirs  receive  prop- 
erty in  the  condition  it  was  in  when  in  the  possession  of  the 
decedent."  Hence  the  claim  was  completely  within  the  operation 
of  the  law  of  June  12,  1889.  The  contention  that  the  claimants 
were  entitled  to  indemnity  for  delay  hi  payment  was  considered 
by  the  tribunal  to  be  outside  the  terms  of  submission. 

In  fixing  the  amount  to  be  paid,  the  tribunal  allowed  interest 
of  4  per  cent  per  annum  after  December  23,  1880,  until  maturity 
of  the  bonds,  and  thereafter  6  per  cent  until  January  i,  1889. 
After  the  latter  date,  principal  and  interest,  converted  into  bonds, 
were  to  yield  i  per  cent  interest  per  annum  in  gold,  until  final 
payment. 

Accordingly, 

"The  arbitral  tribunal  decides  that  the  Peruvian  Government 
shall,  on  July  31,  1912,  deliver  to  the  Italian  Legation  at  Lima, 
on  account  of  the  brothers  Napoleon  and  Carlo  Canevaro: 

"i.  In  bonds  of  the  domestic  (i  per  cent)  debt  of  1889,  the 
nominal  amount  of  39,811  pounds,  8  shillings,  and  i  penny  ster- 
ling upon  the  surrender  of  two-thirds  of  the  bonds  delivered  on 
December  23,  1880,  to  the  firm  of  Jos6  Canevaro  &  Sons; 

"2.  In  gold,  the  sum  of  9,388  pounds,  17  shillings,  i  penny 
sterling,  constituting  the  interest  at  i  per  cent  from  January  i, 
1889,  to  July  31,  1912. 

"The  Peruvian  Government  may  delay  the  payment  of  this 


320        EXPATRIATION  AND  PERPETUAL  ALLEGIANCE 

latter  sum  until  January  i,  1913,  provided  it  pays  interest  thereon 
at  the  rate  of  6  per  cent  from  August  i,  1912." 

(American  Journal  of  International  Law,  vol.  vi,  pp.  709-12; 
746-54;  Revue  Generale  de  Droit  International  Public  [1913],  vol. 
xx,  pp.  317-72;  G.  G.  Wilson:  The  Hague  Arbitration  Cases.) 


§36.    EXPATRIATION    AND    PERPETUAL    ALLEGIANCE 


PROFESSOR  MOORE,  in  his  Digest  of  International  Law,  gives 
the  following  account  of  the  diplomatic  discussion  between  the 
United  States  and  Great  Britain  in  regard  to  the  matter  of  ex- 
patriation,1 especially  with  reference  to  the  case  of  Warren  and 
Costello: 

Early  in  1866  the  United  States  Consul  at  Dublin  transmitted 
to  the  Department  of  State  a  correspondence  in  relation  to  a  num- 
ber of  naturalized  citizens  of  the  United  States  who  had  been 
arrested  and  thrown  into  prison.  It  appeared  by  the  correspond- 
ence that  the  Lord  Lieutenant  of  Ireland  had  declined  to  recognize 
the  interposition  of  the  consul  with  respect  to  persons  who  were 
originally  British  subjects,  on  the  ground  that  they  must  still  be 
regarded  as  such.  Mr.  Seward,  referring  to  this  statement,  ob- 
served that  there  was  a  conflict  between  the  laws  of  Great  Britain 
and  those  of  the  United  States  with  regard  to  the  effect  of  naturali- 
zation, Great  Britain  declining  to  concede  that  a  native  British 
subject  could  divest  himself  of  his  allegiance  by  renouncing  it, 
while  the  United  States  had  maintained  that  the  process  of  natu- 
ralization completely  absolved  the  person  from  his  former  allegi- 
ance, and  invested  him  "with  the  right  equally  with  native-born 
citizens  to  such  protection  and  care  of  the  Government  of  the 
United  States  as  it  can,  in  conformity  with  treaties  and  the  law  of 
nations,  extend  over  him,  wherever  he  may  sojourn,  whether  in 
the  land  of  his  nativity  or  in  any  other  foreign  country."  The  con- 
flict, when  once  practically  raised,  could,  said  Mr.  Seward,  find 

1  A  concise  yet  sufficient  consideration  of  this  whole  question  of  the  doctrine  of 
expatriation  will  be  found  in  J.  B.  Moore's  American  Diplomacy,  pp.  168-99. 


THE  WARREN  AND  COSTELLO  CASES  321 

a  friendly  adjustment  only  by  concession,  in  the  form  of  a  treaty  or 
of  mutual  legislation,  or  of  some  form  of  arbitrament.  The 
answer  of  the  Lord  Lieutenant,  if  it  should  be  adopted  by  Her 
Majesty's  Government,  "must  bring  the  question  up  for  imme- 
diate solution."  Among  the  naturalized  citizens  of  the  United 
States,  in  regard  to  whom  the  discrimination  had  been  made,  were 
some  who  had  borne  arms  in  defense  of  the  United  States  during 
the  Civil  War.  Her  Majesty's  Government  could  conceive  "how 
impossible  it  would  be  for  the  Government  of  the  United  States  to 
agree  to  a  denial  or  abridgment  of  their  right  to  extend  to  them 
the  same  natural  protection  and  care  which  the  United  States 
extend  to  native-born  citizens  of  the  United  States  in  similar 
cases." 

The  foregoing  cases  grew  out  of  the  Fenian  movement.  In 
consequence  of  the  arrest  of  naturalized  American  citizens  on 
charges  connected  with  this  movement,  the  question  of  expatria- 
tion assumed  an  acute  form.  Among  the  numerous  cases  arising 
at  that  time,  the  most  notable  one,  historically,  is  that  of  Warren 
and  Costello,  two  naturalized  American  citizens  who  were  tried 
and  sentenced  in  Dublin,  in  1867,  for  treason-felony,  on  account 
of  participation  in  the  Jacmel  expedition.  It  was  shown  that  they 
had  come  over  to  Ireland  hi  that  vessel  and  had  cruised  along  the 
coast  for  the  purpose  of  effecting  a  landing  of  men  and  arms,  in 
order  to  raise  an  insurrection.  At  their  trial  they  claimed,  as 
American  citizens,  a  jury  de  medietate  lingua,  which  was  then  al- 
lowed by  the  English  law  to  aliens.  The  demand  was  refused  on 
the  ground  of  their  original  British  allegiance.  This  incident,  to- 
gether with  others,  produced  an  excitement  that,  as  Mr.  Seward 
stated,  extended  "throughout  the  whole  country,  from  Portland 
to  San  Francisco  and  from  St.  Paul  to  Pensacola."  The  subject  was 
discussed  in  Congress,  and  exhaustive  reports  were  made  both  in 
the  Senate  and  in  the  House  of  Representatives  on  the  subject  of 
expatriation.  The  cause  of  the  advocates  of  the  right  of  voluntary 
expatriation  was  greatly  strengthened  by  the  conclusion  by  Mr. 
Bancroft,  February  22,  1868,  of  the  convention  with  the  North 
German  Union,  by  which  the  naturalization  of  German  subjects 
in  the  United  States,  after  an  uninterrupted  residence  of  five 
years,  was  recognized.  By  an  act  of  July  27,  1868,  Congress  de- 


322        EXPATRIATION  AND  PERPETUAL  ALLEGIANCE 

clared  "the  right  of  expatriation"  to  be  "an  inherent  right  of  all 
people,"  and  pronounced  "any  declaration,  instruction,  opinion, 
order,  or  decision  of  any  officers  of  this  government  which  denies, 
restricts,  impairs,  or  questions  the  right  of  expatriation"  to  be  "in- 
consistent with  the  fundamental  principles  of  this  government." 
It  was  further  declared  that  naturalized  citizens  of  the  United 
States  should,  while  abroad,  be  entitled  to  receive  from  the  United 
States  "the  same  protection  of  persons  and  property  that  is  ac- 
corded to  native-born  citizens  in  like  situations  and  circum- 
stances." It  was,  moreover,  declared  that,  whenever  it  should  be 
made  known  to  the  President  that  any  citizen  of  the  United  States 
had  been  unjustly  deprived  of  his  liberty  by  or  under  the  authority 
of  any  foreign  government,  it  should  be  the  President's  duty 
forthwith  to  demand  of  such  government  the  reasons  for  the  im- 
prisonment, and,  if  it  appeared  to  be  wrongful  and  in  violation 
of  the  rights  of  American  citizenship,  forthwith  to  demand  the  re- 
lease of  such  citizen,  and,  if  the  release  was  unreasonably  delayed 
or  refused,  to  use  such  means  not  amounting  to  acts  of  war  as 
might  be  necessary  and  proper  to  obtain  such  release,  and  then, 
as  soon  as  practicable,  to  communicate  all  the  facts  and  proceed- 
ings to  Congress. 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  in,  pp. 
579-80.) 


THE  CASE  OF  JOHN  B.  FOICHAT  (1884) 

JOHN  B.  FOICHAT  was  born  in  France,  January  4, 1853.  1°  I^7o, 
at  the  age  of  seventeen,  he  came  to  the  United  States,  where,  in 
1883,  he  was  admitted  to  citizenship.  In  August,  1883,  he  obtained 
a  passport  and  went  to  France,  arriving  there  in  the  following 
month.  In  November,  1884,  he  was  arrested  on  the  charge  of 
having  failed  to  report  for  military  service.  He  protested  and, 
exhibiting  his  naturalization  papers  and  passport,  demanded  that 
he  be  released.  He  was  kept,  however,  two  days  and  three  nights 
in  the  military  prison  at  Chambery,  and  was  then  handcuffed  and 
taken  to  the  military  prison  at  Grenoble  to  be  tried  by  court- 
martial.  He  was  detained  at  Grenoble  four  days,  when  he  was  re- 
leased through  the  efforts  of  the  United  States  Consul  at  Lyons. 


THE  CASE  OF  JOHN  B.  FOICHAT  323 

March  25,  1884,  the  American  Minister  at  Paris  was  instructed 
to  look  into  the  case  and,  if  the  facts  were  found  to  be  as  stated,  to 
present  it  to  the  Minister  of  Foreign  Affairs,  with  an  earnest  request 
that  it  might  receive  early  and  just  consideration  and  that  a  reason- 
able pecuniary  indemnity  might  be  paid.  The  French  Government 
admitted  that  the  facts  were  substantially  as  stated,  but  denied 
that  they  entitled  the  claimant  to  any  compensation.  In  a  note  to 
the  American  Legation,  October  22,  1884,  M.  Ferry,  Minister  of 
Foreign  Affairs,  said  that  Foichat  was  arrested  on  the  charge  of 
insoumission,1  and  added:  "Upon  principle  we  have  constantly 

1  In  a  dispatch  to  Mr.  Frelinghuysen,  No.  665,  November  13,  1884,  Mr.  Vignaud 
makes  an  extended  and  interesting  report  on  the  French  law  of  citizenship,  especially 
with  regard  to  military  service.  The  son  of  every  Frenchman,  says  Mr.  Vignaud,  is 
registered  at  the  place  of  his  birth  if  born  in  France,  or  at  the  place  of  his  family's  resi- 
dence if  bom  abroad,  as  liable  to  military  service.  This  registration  forms  in  each 
commune  a  recruiting  list,  which  is  drawn  up  every  year  by  the  mayor,  who  after- 
wards sends  it  to  the  prefecture  of  the  department,  where  it  is  combined  with  all  the 
other  lists  in  a  general  one,  comprising  all  men  belonging  to  the  department  born 
twenty  years  before.  When  the  time  comes  each  person  on  the  list  is  notified  to  pre- 
sent himself  at  a  designated  place.  If  he  resides  abroad  the  notice  is  served  on  him 
through  his  consul  or  through  members  of  his  family  residing  in  France.  If  he  fails  to 
report,  he  is  charged  with  the  offense  known  to  French  law  as  "  insubmissSon  "  (insou- 
mission), and  the  police  are  ordered  to  arrest  him  when  found.  If,  when  arrested,  he 
does  not  resist,  he  is  generally  dealt  with  gently;  if  he  resists,  he  is  handcuffed  and 
treated  roughly.  The  police  deliver  him  to  the  military  authorities  as  an  insoumis, 
and  a  court-martial  proceeds  to  try  him  as  such.  If  he  pleads  that  he  has  renounced 
his  original  nationality,  the  court-martial  suspends  action  while  the  defendant  appeals 
to  the  civil  courts.  While  this  appeal  is  pending  he  is  usually  left  at  liberty.  In  the 
civil  court  the  course  of  procedure  is  by  summons  to  the  prefect  of  the  department  to 
erase  the  individual  named  from  the  recruiting  list.  On  production  of  duly  authenti- 
cated proofs  of  foreign  nationality,  by  birth  or  by  naturalization,  the  civil  court 
renders  a  judgment  to  the  effect  that  the  defendant,  having  ceased  to  be  a  French 
citizen,  cannot  serve  in  the  French  army.  The  defendant  is  then  sent  back  to  the 
military  court.  His  name  is  erased  from  the  military  rolls;  but  he  is  then  tried  for 
the  offense  of  "  insubmission  "  committed  before  the  rendering  of  the  judgment  that 
he  had  lost  French  nationality.  If  three  years  have  elapsed  since  he  was  naturalized, 
he  is  discharged  by  limitation.  If  such  a  period  has  not  elapsed,  he  is  sentenced  to 
a  fine  or  to  a  few  weeks'  or  months'  imprisonment,  or  both,  according  to  the  circum- 
stances. If  he  has  lived  a  long  time  abroad,  and  the  circumstances  indicate  that  he 
expatriated  himself  in  good  faith  and  not  for  the  purpose  of  evading  his  military 
obligations,  the  sentence  is  made  as  light  as  possible,  if  not  altogether  omitted;  but, 
in  the  contrary  case,  it  is  made  as  severe  as  possible.  When,  whether  punished  or 
not,  he  is  released  by  the  military  authorities,  he  is  again  turned  over  to  the  civil 
authorities,  who,  if  he  is  considered  a  bonafide  foreigner,  discharge  him,  but,  in  the 
contrary  case,  order  him  to  be  expelled.  "  Nine  times  out  of  ten,"  says  Mr.  Vignaud, 
"an  order  of  expulsion  awaits  the  Frenchman  naturalized  abroad  who  ventures  to 
come  to  France  before  having  performed  his  military  service.  The  interposition  of 
the  legation  in  such  cases  is  useless.  The  French  Government  is  very  sensitive  on  this 


324        EXPATRIATION  AND  PERPETUAL  ALLEGIANCE 

refused  to  admit  that  a  Frenchman,  naturalized  in  a  foreign  coun- 
try, can  be  exempted  if  he  returns  to  France  from  being  answerable 
for  the  offense  of  insubmission,  when  the  naturalization  has  taken 
place  subsequently  to  the  existence  of  the  offense.  You  will 
understand  that  we  cannot  abandon  this  jurisprudence,  which  is 

•point,  and  will  listen  to  no  request  tending  to  allow  one  who  has  averted  military 
service  by  placing  himself  under  a  foreign  flag  to  remain  unmolested,  and  apparently 
in  defiance  of  the  French  military  laws,  in  the  midst  of  those  who  are  rigorously  held 
to  obey  them.  We  have  occasionally  obtained  a  short  extension  of  the  time  allowed 
for  leaving  France.  We  have  never  secured  the  revocation  of  an  order  of  expulsion 
issued  under  such  circumstances."  (Moore:  Digest  of  International  Law,  vol.  in, 
pp.  594-95  •) 

The  following  "notice  to  citizens  formerly  subjects  of  Italy  who  contemplate  re- 
turning to  that  country"  was  issued  by  the  Department  of  State  at  Washington, 
March  18,  1901: 

"The  information  given  below  is  believed  to  be  correct,  yet  it  is  not  to  be  consid- 
ered as  official,  as  it  relates  to  the  laws  and  regulations  of  a  foreign  country. 

"Italian  subjects  between  the  ages  of  twenty  and  thirty-nine  years  are  liable  for 
the  performance  of  military  duty  under  Italian  law,  except  in  the  case  of  an  only  son, 
or  where  two  brothers  are  so  nearly  of  the  same  age  that  both  would  be  serving  at 
the  same  time,  in  which  event  only  one  is  drafted,  or  when  there  are  two  sons  of  a 
widow,  when  only  one  is  taken. 

"Naturalization  of  an  Italian  subject  in  a  foreign  country  without  consent  of  the 
Italian  Government  is  no  bar  to  liability  to  military  service. 

"A  former  Italian  subject  may  visit  Italy  without  fear  of  molestation  when  he  is 
under  the  age  of  twenty  years;  but  between  the  ages  of  twenty  and  thirty-nine  he  is 
liable  to  arrest  and  forced  military  service,  if  he  has  not  previously  reported  for  such 
service.  After  the  age  of  thirty-nine  he  may  be  arrested  and  imprisoned  (but  will  not 
be  compelled  to  do  military  duty)  unless  he  has  been  pardoned.  He  may  petition  the 
Italian  Government  for  pardon,  but  this  Department  will  not  act  as  the  inter- 
mediary in  presenting  his  petition."  (Moore:  Digest  of  International  Law,  vol.  in, 
pp.  615-16.) 

The  outcome  of  the  case  of  Vittorio  Gardella  was  exceptional  to  this  procedure. 
It  appeared  that  he  was  born  in  Italy  in  1861  and  was  taken  to  the  United  States 
when  only  six  years  of  age.  He  was  naturalized  in  1884.  He  resided  in  the  United 
States  continuously  from  1877  to  1895,  his  home  being  in  the  city  of  New  York 
•where  he  had  a  wife  and  family.  He  was  on  a  visit  to  Italy  when  he  was  drafted  into 
the  army.  On  October  19, 1896,  Mr.  MacVeagh,  United  States  Ambassador  at  Rome, 
brought  the  case  personally  to  the  attention  of  the  Italian  Minister  for  Foreign  Af- 
fairs, the  Marquis  Visconti  Venosta,  and  obtained  Gardella's  release  in  the  form  of 
a  grant  of  unlimited  leave,  which  did  not  formally  waive  the  contention  of  the  Italian 
Government.  Indeed,  the  Marquis  Visconti  Venosta,  in  informing  Mr.  MacVeagh 
of  Gardella's  release,  observed  that  while  he  had  no  doubt  lost  his  Italian  citizenship 
by  virtue  of  article  u,  paragraph  2,  of  the  Italian  Civil  Code,  he  nevertheless  re- 
mained "liable  to  military  service  in  the  Kingdom,  according  to  the  peremptory 
provisions  of  the  succeeding  article  12,"  and  that  the  case  of  Gardella  had  been  dis- 
posed of "  in  an  exceptional  way  "  in  view  of  his  exceptional  situation,  of  certain  amend- 
ments which  were  expected  to  be  made  in  the  law  regulating  the  levy  of  persons  re- 
siding abroad  when  enlisted,  and  of  the  interest  which  Mr.  MacVeagh  took  in 
the  case.  (Condensed  extract  from  Moore:  Digest  of  International  Law,  vol.  ra, 
pp.  614-15.) 


THE  CASE  OF  THE  CARACAS  WATERWORKS  325 

dictated  by  a  question  of  public  order  of  a  most  important  char- 
acter, and  against  which  the  Government  of  the  United  States 
would  be  all  the  less  founded  in  protesting,  as  it  is  in  conformity 
with  one  of  the  principal  provisions  which  appear  in  the  treaties 
of  naturalization  concluded  by  it  with  certain  powers."  M.  Ferry 
then  cited  article  2  of  the  treaty  between  the  United  States  and 
the  North-German  Union  of  February  22,  1868,  to  the  effect  that 
a  naturalized  citizen  remains  punishable  for  offenses  committed 
prior  to  his  emigration,  subject  to  the  statutes  of  limitation. 

(Taken  textually  from  Moore:  Digest  of  International  Law,  vol. 
ni,  p.  S93-) 


§  37.  PROTECTION  OF  THE  LIFE,  LIBERTY,  AND  PROPERTY 
OF  NATIONALS  WITHIN  ANOTHER  STATE 


THE  many  important  cases  which  fall  under  this  heading  will 
be  found  in  other  sections. 


§  38.  NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 


THE   CASE  OF  THE  CARACAS  WATERWORKS 
(COMPAGNIE  GfiNfiRALE  DES  EAUX  DE  CARACAS) 

Belgian-Venezuelan  Mixed  Claims  Commission,  1903 

Filtz,  Umpire: 

"The  umpire  having  examined  and  studied  the  documents  in 
the  record  and  considering: 

"That  article  i  of  the  protocol  of  Washington  declares  that  the 
Commission  has  jurisdiction  to  examine  and  decide  all  Belgian 
claims  against  the  Republic  of  Venezuela  which  have  not  been 
settled  by  diplomatic  agreement  between  the  two  governments, 
and  which  may  have  been  presented  to  the  commission  by  the 
Belgian  Government  or  by  the  Legation  of  Belgium  at  Caracas; 

"That  the  present  claim  has  not  been  settled  by  diplomatic 
agreement  between  the  two  governments,  and  that  it  has  been  pre- 


326     NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

sented  to  the  commission  by  the  agent  of  the  government  at 
Caracas; 

"That  the  claimant  company's  Belgian  character  has  not  been 
disputed,  and  that  it  has  not  lost  it,  because  among  the  holders  of 
the  bonds  which  have  been  issued  by  the  Government  of  the 
Republic  persons  of  a  different  nationality  are  found; 

"For  these  reasons  declares  that  the  commission  has  jurisdic- 
tion and  orders  that  it  proceed  to  decide  upon  the  merits  without 
delay." » 

(Venezuelan  Arbitrations  of  ipoj,  prepared  by  J.  H.  Ralston 
[Washington,  1904],  pp.  275-76.) 


THE  ALSOP  CLAIM 

Award  pronounced  by  His  Majesty  King  George  V  as  Amiable  Compositeur  between  the 
United  States  and  Chile,  July  5, 


Tms  claim,  like  many  others  pressed  against  the  Latin-Ameri- 
can states,  had  its  origin  in  the  unstable  economic  and  political 
conditions  so  often  found  in  those  countries.  Though  finally  as- 
sumed by  Chile,  it  arose  out  of  transactions  had  by  the  Bolivian 
Government  with  one  Pedro  Lopez  Gama,  a  Brazilian,  who,  by 
various  contracts  between  1860  and  1876,  had  acquired  extensive 
rights  in  the  development  of  the  guano  industry.  He  was  assisted 
in  his  financial  arrangements  by  the  firm  of  Alsop  and  Company, 
the  members  of  which  were  American  citizens,  though  the  firm 
itself  was  registered  in  Chile.  In  1875  Gama  assigned  all  his 
claims  against  Bolivia  to  the  Alsops,  and  in  1876  this  assignment 
was  recognized  by  the  Bolivian  Government  through  an  agree- 
ment entered  into  with  Mr.  Wheelwright,  the  liquidator  of  the 
Alsop  firm,  looking  to  the  discharge  of  all  obligations  due  by 
Bolivia  to  Gama.  This,  known  as  the  Wheelwright  contract,  was 
the  basis  of  the  claim  in  question,  and  under  it  Bolivia  admitted 
an  indebtedness  to  Alsop  and  Company  of  835,000  bolivianos 
with  interest  at  the  rate  of  five  per  cent  per  annum,  not  compound- 

1  Having  decided  this  preliminary  question  of  jurisdiction,  the  umpire  in  his 
decision  as  to  the  merits  of  the  case  allowed  damages  to  the  amount  of  10,565,199.44 
bolivars,  or  about  three-fourths  of  the  claim.  In  making  this  award  the  umpire 
gave  as  one  of  his  grounds:  "It  is  not  to  be  considered  whether  foreign  bondholders 
can  indirectly  take  advantage  of  its  action  [to  recover  the  damages]." 


THE  ALSOP  CLAIM  327 

able.  This  debt  was  to  be  liquidated  by  liens  on  customs  receipts 
and  by  concessions  in  the  operation  of  government  silver  mines. 
At  that  time  the  customs  duties  for  the  coast  provinces  of  Bolivia 
were  collected  at  the  Peruvian  port  of  Arica  under  an  arrange- 
ment whereby  the  duties  were  divided  between  the  two  states 
without  any  further  revenue  collections  at  the  Bolivian  frontier. 
By  the  contract  with  Wheelwright,  Bolivia  agreed  to  apply 
toward  the  liquidation  of  the  Alsop  claim  the  sums  by  which  the 
Bolivian  share  of  the  customs  duties  exceeded  405,000  bolivianos 
annually.  Bolivia  was  expecting  a  new  arrangement  with  Peru 
under  which  her  revenue  would  be  materially  increased,  and  this 
was  the  surplus  contemplated  in  the  Wheelwright  contract. 
The  mining  privileges  applied  to  certain  "estacas"  or  areas  which, 
under  Bolivian  mining  law,  were  reserved  to  the  government. 
The  right  to  operate  these  was  given  to  Alsop  and  Company, 
sixty  per  cent  of  the  net  proceeds  to  go  to  the  firm  and  forty  per 
cent  to  the  government.  The  latter  share,  however,  was  not 
actually  to  be  paid  to  Bolivia,  but  was  to  be  retained  by  the  Alsops 
and  used  in  liquidation  of  the  debt. 

In  1879  war  broke  out  between  Bolivia  and  Chile  and  a  few 
months  later  Peru  was  involved  as  well.  One  of  its  results  was, 
that  the  port  of  Arica,  together  with  the  coast  of  Bolivia,  came 
under  the  military  occupation  of  Chile,  and  thus  Bolivia  was  un- 
able to  discharge  her  obligations  under  the  Wheelwright  contract. 
This  temporary  occupation  became  permanent  under  the  Pact  of 
Indefinite  Truce  in  1884  and  Chilean  sovereignty  over  the  Bo- 
livian coast  was  finally  recognized  by  treaty  in  1904.  In  the  mean- 
time, the  Peruvian  port  of  Arica  had  been  ceded  to  Chile  in  1883, 
and  under  the  Pact  of  1884  a  new  customs  agreement  had  been 
made  between  Chile  and  Bolivia,  whereby  twenty-five  per  cent 
of  the  receipts  were  to  be  retained  by  Chile  and  forty  per  cent 
more  in  satisfaction  of  war  claims  against  Bolivia;  the  remaining 
thirty-five  per  cent  went  to  Bolivia.  From  1880  —  the  date  of 
the  occupation  of  Arica  —  to  1884,  Chile  had  levied  the  duties 
by  virtue  of  her  right  as  military  occupant  and  had  appropriated 
the  revenues  to  her  own  purposes,  giving  no  recognition  to  the 
Alsop  claim  to  a  share  of  the  receipts. 

The  mining  operations  proved  equally  unsatisfactory  to  the 


328    NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

firm.  Even  under  Bolivian  sovereignty  it  had  been  difficult  to 
get  possession  in  all  cases  and  many  of  the  properties  had  not 
come  under  the  firm's  control  at  the  outbreak  of  war.  After  oc- 
cupation by  Chile,  Bolivia  was  no  longer  able  to  give  possession, 
for  Chile  regarded  the  "estacas"  as  Bolivian  public  property  and 
hence  passing  to  Chile  as  conqueror.  The  rights  of  the  firm  were 
not  regarded  as  "real"  rights  except  where  possession  had  actually 
been  entered  upon,  and,  on  this  ground,  the  Chilean  courts  re- 
fused to  recognize  title  on  the  part  of  the  firm  to  some  of  the  prop- 
erties claimed  under  the  Wheelwright  contract. 

Failing  to  get  settlement  from  either  Chile  or  Bolivia,  the  firm 
invoked  action  by  the  Government  of  the  United  States.  While 
still  considering  Bolivia  as  liable  for  the  original  debt  under  the 
Wheelwright  contract,  the  Government  of  the  United  States 
contended  that  a  claim  for  the  amount  might  justly  be  made  upon 
Chile.  This  was  done  before  the  Claims  Commission  of  1890,  and 
again  in  1894,  but  was  dismissed  on  the  ground  that  the  firm  was 
a  "juridical  entity  possessing  Chilean  nationality."  The  same 
treatment  was  given  to  the  claim  by  another  Claims  Commission 
in  1901,  but  on  that  occasion  the  agent  of  Chile  made  the  state- 
ment that  "in  order  to  induce  the  Bolivian  Government  to  sign 
the  definite  treaty  of  peace  which  has  been  negotiated  for  many 
years,  the  Chilean  Government  offers  to  meet  this  and  other 
claims  as  part  of  the  payment  or  consideration  which  it  offers  to 
Bolivia  for  the  signature  of  the  treaty."  To  that  end  it  was  finally 
agreed  by  treaty  in  1904  that  Chile  should  appropriate  2,000,000 
pesos  in  gold  to  discharge  certain  obligations  of  Bolivia,  among 
which  the  Alsop  claim  was  specified,  and  4,500,000  for  certain 
other  claims.  As  the  claims  exceeded  the  amount  designated, 
payment  was  to  be  made  pro  rata.  In  a  note  explanatory  of  the 
treaty,  the  Chilean  Government,  through  its  negotiator,  considered 
"that  the  obligation  which  Chile  contracts  by  article  5  of  the  said 
treaty  comprises  that  of  arranging  directly  with  the  two  groups 
of  creditors  recognized  by  Bolivia  for  the  permanent  cancellation 
of  each  of  the  claims  mentioned  in  said  article,  thus  relieving 
Bolivia  of  all  subsequent  liabilities." 

Having  assumed  this  liability,  the  Chilean  Government  offered 
a  certain  sum  in  settlement,  but  the  Government  of  the  United 


THE  ALSOP  CLAIM  329 

States  refused  it  "as  being  insufficient  to  satisfy  either  the  just 
claim  of  Alsop  and  Company  on  Bolivia  or  Chile,  or  the  liability 
which  Chile  has  herself  undertaken  on  behalf  of  Bolivia."  Upon 
failure  to  arrive  at  a  diplomatic  settlement,  the  two  governments 
on  December  i,  1909,  agreed  upon  a  protocol  wherein  they  sub- 
mitted the  whole  controversy  to  His  Majesty,  Edward  VII,  who, 
as  amiable  compositeur,  was  empowered  to  determine  the  amount, 
if  any,  equitably  due  the  claimants  in  the  Alsop  claim. 

King  Edward  died  before  he  could  act  in  accordance  with  the 
protocol,  but  on  request  of  the  parties  George  V  consented  to  take 
his  place.  To  assist  him  in  arriving  at  an  award,  His  Majesty 
designated  a  commission  of  three  —  Lord  Desart,  Lord  Robson, 
and  C.  J.  Hurst  —  to  study  all  necessary  documents  and  to  sub- 
mit a  report  as  to  the  amount  equitably  due.  In  their  report, 
which  became  the  basis  of  the  award,  the  commissioners  denned 
the  function  of  an  amiable  compositeur  to  be  one  "  of  pronouncing 
an  award  which  shall  do  substantial  justice  between  the  parties 
without  attaching  too  great  an  importance  to  the  technical  points 
which  may  be  raised  on  either  side."  In  accordance  with  the  re- 
port, King  George  rendered  his  award  on  July  5,  1911. 

In  its  case  and  counter-case  in  support  of  the  claim,  the  Gov- 
ernment of  the  United  States  emphasized  the  fact  that  "the  firm 
of  Alsop  and  Company,  whatever  its  status  may  have  been  as  a 
matter  of  mere  legal  fiction,  was  in  essence  and  in  fact  wholly 
American,  and  that  its  members,  being  American  citizens,  in- 
vesting their  own  American  capital,  the  Government  of  the 
United  States  had  a  right  to  make  and  to  continue  to  make  its 
representations  in  behalf  of  these  American  citizens,  and  for  the 
protection  of  this  American  property  in  respect  to  any  and  all 
actions  which  in  the  judgment  of  the  Government  of  the  United 
States  were  injurious  and  contrary  to  the  law  of  nations."  Several 
precedents  were  cited  in  support  of  its  action,  among  them  the 
Cemiti  case  in  Colombia  and  the  Delagoa  Bay  Railway  case. 
The  real  parties  in  interest  were  not  "the  artificial  entity  of  Alsop 
and  Company,  but  the  American  citizens  who  composed  the 
firm,"  or,  as  the  protocol  put  it, "  the  claimants  in  the  Alsop  claim," 
all  of  whom  were  citizens  of  the  United  States.  As  to  the  merits 
of  the  claim  itself,  the  position  of  the  United  States  was  clear:  it 


330    NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

considered  the  Wheelwright  contract  as  "legal,  valid  and  equitable 
in  all  its  parts"  and  to  be  regarded  as  existing  until  the  debt  was 
satisfied.  The  debt  was  originally  due  from  Bolivia  and  that 
state  still  remained  liable  until  it  was  paid  with  interest.  The 
United  States  did  not  contend  that  Chile  was  liable  upon  the 
Wheelwright  contract,  for  such  an  obligation  was  personal  to 
Bolivia  as  a  state,  and  did  not  pass  with  the  transfer  of  the  con- 
quered provinces.  The  claim  in  question  was  preferred  against 
Chile  on  other  grounds.  Chile  had  arbitrarily  appropriated  funds 
from  the  Arica  customs  which  under  the  contract  were  vested 
property  rights;  hence  Chile  became  responsible  for  money  which 
otherwise  would  have  been  remitted  to  Bolivia,  and  by  her 
to  the  Alsops.  In  effect,  the  contract  had  assigned  to  that 
firm  all  the  receipts  at  Arica  except  the  405,000  bolivianos, 
and  "such  assignment  .  .  .  was  a  transaction  which  could  toot 
be  set  aside  and  constituted  an  arrangement  which  Chile  was 
bound  to  respect."  In  this  it  resembled  the  case  of  the  Silesian 
loan. 

Chile  was  further  under  liability,  the  United  States  contended, 
because  she  had  "interfered  with  and  failed  to  vindicate  the 
mining  rights  given  to  the  concessionaries."  The  United  States 
maintained  that  the  contract  of  1876  had  obtained  for  the  Alsops 
"an  absolute  lease  of  the  mines  for  a  period  of  twenty-five  years, 
creating  a  vested  right  in  the  firm  to  the  possession  of  the  mines, 
which  the  Government  of  Chile  were  bound  to  treat  as  the  prop- 
erty of  Alsop  and  Company,"  since,  in  modern  practice,  private 
rights  suffer  no  confiscation  at  the  hands  of  a  conqueror. 

Finally,  the  United  States  considered  Chile  responsible  for  the 
payment  of  the  claim  by  reason  of  "repeated  promises  and  diplo- 
matic undertakings"  made  by  the  Government  of  Chile  to  the 
Government  of  the  United  States  as  well  as  to  the  Government  of 
Bolivia,  especially  in  the  Treaty  of  1904,  by  which  "the  obliga- 
tion of  Chile  to  meet  the  contract  was  complete  and  unlimited," 
and  in  the  "secret"  notes,  in  which  Chile  had  made  declaration 
that  she  recognized  the  freedom  of  Bolivia  from  all  liability. 

The  Government  of  Chile  on  its  part,  contended  that  the 
claim  was  not  one  for  the  United  States  to  press,  for  quoting  the 
Commission  of  1901,  the  firm  of  Alsop  and  Company  "was  duly 


THE  ALSOP  CLAIM  331 

created,  incorporated,  and  registered  under  the  Chilean  law," 
and  hence  was  a  juridical  person  of  Chilean  domicile.  This  left 
the  claim  a  matter  for  the  Chilean  courts,  not  for  diplomacy,  but 
on  no  occasion  had  the  Alsops  "put  forward  the  slightest  claim, 
either  to  the  Government  of  Chile  or  to  her  tribunals,  for  the  pay- 
ment of  this  debt."  As  to  the  Wheelwright  contract,  no  liability 
in  any  of  its  parts  could  attach  to  Chile.  The  customs  at  Arica 
had  been  merely  a  matter  of  arrangement  between  Bolivia  and 
Peru,  the  sovereign  of  Arica.  When  Chile  entered  Arica,  she  ap- 
propriated the  customs  receipts  as  legitimate  occupant  in  ac- 
cordance with  the  principles  of  international  law.  The  revenues 
at  Arica  had  not  been  encumbered  with  any  local  charges  that 
might  be  construed  as  going  with  the  land.  Only  the  sovereign 
could  make  such  an  assignment,  and  Peru  had  never  done  so. 
Bolivia  had  merely  designated  part  of  her  income  to  satisfy  a 
particular  obligation.  This  was  a  personal  undertaking,  and 
when  her  expected  source  of  income  was  cut  off,  Bolivia  and 
her  creditors  must  look  to  other  arrangements.  Chile,  however, 
had  gone  further  than  required  and  had  agreed  to  give  Bolivia 
a  large  share  of  the  customs  receipts  at  Arica.  If  Bolivia  did 
not  satisfy  claims  against  her  from  these,  Chile  could  not  be  held 
responsible. 

In  the  matter  of  the  mines,  Chile  maintained  that  Bolivia  had, 
in  the  first  instance,  no  valid  title  to  the  territory  in  which  they 
were  situated;  it  was  Chilean,  and  Chile  had  lawfully  recovered 
it  by  war  and  was  under  no  necessity  to  recognize  the  Alsop  con- 
cessions. Even  if  Bolivia's  grants  were  valid,  there  was  no  duty 
to  respect  them,  "as  the  claims  did  not  arise  from  debts  contracted 
by  Bolivia  for  the  special  benefits  of  this  territory,  but  for  the 
general  purposes  of  the  whole  of  Bolivia,  and  Bolivia  remained 
liable  to  pay  Alsop  and  Company  from  other  sources."  The  min- 
ing concessions,  according  to  the  Chilean  argument,  were  not 
"real"  rights  which  a  conqueror  was  bound  to  respect,  but  only 
rights  held  under  a  contract  of  anticresis,  that  is,  a  contract 
"whereby  there  is  delivered  to  the  creditor  a  real  property  in 
order  that  he  may  pay  himself  out  of  the  proceeds."  When  the 
mines  were  in  actual  possession  of  the  firm,  their  rights  had  been 
recognized  by  Chile;  other  cases  were  for  the  courts  to  decide. 


332     NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

That  the  Alsops  had  to  undertake  much  litigation  did  not  im- 
pose upon  Chile  any  liability  for  claims,  as  long  as  there  had  been 
no  denial  of  justice  in  Chilean  courts. 

In  the  last  place,  Chile  considered  that  she  had  given  no  under- 
taking applicable  to  the  claim  in  question  other  than  that  con- 
tained in  the  treaty  with  Bolivia  in  1904.  While  admitting  some 
liability  assumed,  she  contended  that  the  satisfaction  of  the  Alsop 
claim  was  to  be  limited  to  the  pro  rata  share  of  the  amount  set 
aside  in  the  treaty.  Chile  stood  ready  to  pay  to  that  extent;  in- 
deed, had  made  offers  to  that  end,  and,  falling  acceptance  by  the 
claimants,  would  make  payment  to  the  Bolivian  Government, 
leaving  the  latter  to  settle  the  claim.  The  notes  cited  in  the  argu- 
ment of  the  United  States  did  not  modify  the  treaty  in  any  re- 
spect, but  were  only  "intended  to  insure  that  Bolivia  should 
finally  be  relieved  from  any  liability  under  the  Wheelwright  con- 
tract by  the  payment  of  the  sum  provided  in  article  5  of  the 
treaty:  .  .  .  their  purpose  was  in  fact  to  insure  that  Chile  should 
not  pay  to  any  of  the  claimants  their  proportion  of  the  6,500,000 
pesos  without  procuring  from  the  claimants  a  full  discharge  so 
that  no  further  claim  could  be  preferred  either  against  Bolivia 
or  Chile." 

In  their  report  to  King  George  the  commissioners  found  no 
responsibility  attaching  to  Chile  under  the  Wheelwright  contract 
itself.  Bolivia  had  at  no  time  been  sovereign  of  Arica,  and  hence 
could  put  no  lien  upon  its  customs.  When  the  Chilean  occupa- 
tion took  place,  the  effect  was  "to  put  it  out  of  the  power  of  Peru 
to  carry  out  the  agreement  of  1878;  consequently,  Bolivia's  right 
to  any  share  in  the  customs  collected  at  Arica  determined  from 
that  moment."  The  precedent  of  the  Silesian  loan  was  not  ap- 
plicable, for  in  that  case  the  customs  revenues  had  been  assigned 
by  the  sovereign  of  the  territory  affected.  "The  result  is,"  the 
report  went  on  to  say,  "that  with  regard  to  this  part  of  the  case 
we  can  only  report  to  Your  Majesty  that  the  Wheelwright  con- 
tract effected  no  assignment  or  hypothecation  of  the  Arica  cus- 
toms, that  the  arrangement  embodied  in  article  2  of  that  contract 
was  not  binding  on  Chile,  that  Chile  in  appropriating  the  pro- 
ceeds of  the  Arica  customs,  either  before  or  after  the  Pact  of  In- 
definite Truce  in  1884,  did  not  receive  the  money  to  the  use  of 


THE  ALSOP  CLAIM  333 

Alsop  and  Company,  and  that  the  claim  under  this  head  for 
$2,337,384.28  payable  in  gold  is  not  sustainable." 

On  the  question  of  the  mining  concessions  the  commission  re- 
ported equally  adversely  to  the  claimants.  In  its  opinion,  "the 
rights  which  Alsop  and  Company  possessed  under  the  Wheel- 
wright contract  to  work  a  particular  'estaca'  was  merely  a  con- 
tractual right  against  Bolivia;  until  they  had  secured  possession 
of  the  'estaca,'  they  had  nothing  which  could  fairly  be  described 
as  property."  The  occupation  transferred  the  "estacas,"  being 
government  property,  to  Chile,  but  did  not  bind  Chile  in  any  way 
to  give  possession  to  the  Alsops;  "she  was  under  no  obligation  to 
facilitate  the  transfer  of  the  'estacas'  to  Alsop  and  Company  in 
order  that  they  might  use  them  to  obtain  money  for  the  pay- 
ment of  a  debt  owing  by  Bolivia."  Chile  had  respected  actual 
possession;  as  regards  "estacas"  claimed  but  not  obtained, 
it  could  hardly  be  maintained  that  damages  had  been  suf- 
fered, even  if  Chilean  law  had  refused  possession,  for  oper- 
ation of  the  mines,  as  a  whole,  had  been  unprofitable,  and 
thus,  apart  from  all  technicalities,  there  was  no  equitable  claim 
to  indemnity. 

The  commission,  however,  considered  Chile  responsible  for  the 
claim  on  the  ground  that  she  had  undertaken  to  pay  it.  Such  an 
undertaking  was  not  found  in  any  promise  given  or  statement 
made  to  the  Government  of  the  United  States,  but  in  the  treaty 
with  Bolivia  in  1904  and  in  the  two  notes  of  the  same  year.  The 
contention  of  Chile  that  Bolivia  was  to  be  relieved  from  all  her 
liability  by  a  part  payment  of  it  by  Chile,  did  not  recommend 
itself  to  the  commissioners.  "The  more  natural  construction  of 
the  wording  of  the  two  notes  is,  that  they  were  intended  to  re- 
lieve Bolivia  altogether  of  any  further  liability  under  these  claims, 
whether  the  proportionate  share  of  the  six  and  a  half  millions  was 
accepted  in  final  settlement  or  not."  Bolivia  had  reluctantly 
parted  with  her  coast  provinces,  and  the  consideration  was  this 
very  freedom  from  all  liability  for  the  claims  specified  in  the 
treaty.  Hence,  if  the  intention  expressed  in  the  notes  was  to  be 
carried  out,  Chile  would  have  to  relieve  Bolivia  of  all  liability, 
and  if  the  Wheelwright  contract  was  to  be  fulfilled,  she  must 
make  complete  payment. 


334    NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

In  accordance  with  the  report  King  George  rendered  his  award 
as  follows: 

"Whereas,  after  mature  consideration  we  are  fully  persuaded 
of  the  wisdom  and  justice  of  the  said  report; 

"Now  therefore  we,  George,  by  the  Grace  of  God,  of  the  United 
Kingdom  of  Great  Britain  and  Ireland  and  of  the  British  Domin- 
ions beyond  the  Seas  King,  Defender  of  the  Faith,  Emperor  of 
India,  do  hereby  award  and  determine  that  the  sum  of  two  mil- 
lion two  hundred  and  seventy-five  thousand  three  hundred  and 
seventy-five  bolivianos  is  equitably  due  to  the  representatives  of 
Alsop  and  Company. 

"Given  in  triplicate  under  our  hand  and  seal  at  our  Court  of 
St.  James',  this  fifth  day  of  July,  one  thousand  nine  hundred  and 
eleven  in  the  second  year  of  our  reign. 

"GEORGE  R.L" 

(Award,  Cases,  and  Appendices,  published  by  Government 
Printing  Office,  Washington,  1910-11;  American  Journal  of  In- 
ternational Law  [1911],  vol.  v,  pp.  1079-1107.) 


THE  DELAGOA  BAY  RAILWAY  ARBITRATION 

Special  Arbitral  Tribunal  at  Berne,  1900 

THIS  was  a  case  where  two  governments  intervened  to  protect 
interests  held  by  their  nationals  in  a  foreign  corporation  when  its 
assets  were  endangered  by  the  action  of  the  government  legally 
entitled  to  control  it.  The  circumstances  leading  to  the  arbitra- 
tion were  as  follows: 

On  December  n,  1875,  in  a  protocol  annexed  to  a  treaty  of 
amity  and  commerce  between  Portugal  and  the  Transvaal,  it 
was  stipulated  that  railway  communication  should  be  instituted 
between  the  port  of  Lourenfo  Marques  and  some  point  in  the 
Transvaal,  each  party  to  promote  construction  within  its  own 
territory.  No  steps,  however,  were  taken  to  realize  the  under- 
taking until  December  14,  1883,  on  which  date  the  Portuguese 
Government  granted  to  Colonel  Edward  MacMurdo,  a  citizen 
of  the  United  States,  the  exclusive  right  to  construct  a  railway 
from  Lourenjo  Marques  "to  the  frontier  (as  yet  undetermined) 


THE  DELAGOA  BAY  RAILWAY  ARBITRATION          335 

separating  Portuguese  territory  from  the  territory  of  the  Trans- 
vaal." The  contract  governing  the  concession  required  Mac- 
Murdo  to  organize  a  company  within  six  months  from  the  date 
of  the  contract  and  to  complete  construction  within  three  years 
after  his  plans  had  been  approved  by  the  Portuguese  Govern- 
ment. The  concession  carried  with  it  the  exclusive  right  to 
operate  the  road  for  ninety-nine  years,  at  the  end  of  which  time 
it  was  to  become  the  property  of  the  government.  By  article  2 
the  government  promised  neither  to  construct,  nor  to  grant  a 
concession  for,  any  other  railway  leading  to  the  Transvaal  within 
a  zone  of  one  hundred  kilometers  on  either  side  of  the  projected 
line.  By  article  42  the  government  had  the  right  to  rescind  the 
contract,  if,  after  the  work  had  commenced,  satisfactory  progress 
was  not  maintained,  or  if  the  road  was  not  completed  within  the 
time  specified.  The  contract  might  also  be  rescinded,  after  due 
notice  given  by  the  government,  in  case  of  total  or  partial  inter- 
ruption in  the  promotion  of  the  enterprise.  Both  the  contract 
and  the  company  to  be  formed  to  execute  its  purposes  were  to  be 
amenable  to  the  laws  and  tribunals  of  Portugal,  but  any  differ- 
ences that  might  arise  as  to  the  execution  of  the  contract  were  to 
be  settled  by  arbitration. 

In  accordance  with  the  contract  the  Lourenc.o  Marques  and 
Transvaal  Railway  Company  was  organized  at  Lisbon  with  a 
capital  of  £500,000,  its  statutes  being  approved  by  royal  decree 
on  May  14,  1884.  By  a  contract  entered  into  on  May  26,  1884, 
between  this  company  and  MacMurdo,  the  company  undertook 
to  issue  bonds  to  the  amount  of  £425,000,  the  proceeds  of  which 
were  to  be  used  by  MacMurdo  to  construct  the  railway.  In  re- 
turn, MacMurdo  transferred  to  the  company  his  rights  under  the 
concession  and  received  for  them  498,940  shares  in  the  company. 
The  Portuguese  Government,  however,  according  to  its  own  as- 
sertion, had  no  knowledge  of  this  arrangement  until  three  years 
after  it  had  been  made. 

Soon  after  the  government  had  entered  into  its  agreement  with 
MacMurdo,  a  delegation  from  the  Transvaal,  headed  by  the 
President,  Paul  Krtiger,  arrived  at  Lisbon  to  negotiate  a  new 
convention  and  to  discuss  the  question  of  railways.  Having  al- 
ready interested  a  Dutch  syndicate  in  the  construction  of  the 


336    NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

Transvaal  section,  it  expressed  disappointment  at  the  MacMurdo 
concession,  for,  in  its  opinion,  "there  was  no  guarantee  that  the 
American  concessionaire  could  find  the  capital  necessary  to  con- 
struct the  line."  An  offer  by  MacMurdo  to  sell  the  concession 
was  rejected  by  the  Boer  delegation,  the  Dutch  company  con- 
sidering it  exorbitant.  In  a  memorandum  addressed  to  the 
Minister  of  the  Colonies  on  May  9,  1884,  the  delegation  asserted 
that  the  Transvaal  section  was  dependent  for  the  transportation 
of  constructional  material  upon  the  speedy  and  efficient  comple- 
tion of  the  line  from  Lourenco  Marques,  but  that  such  was  not 
likely  to  be  accomplished  by  MacMurdo.  As  an  alternative,  the 
delegation  suggested  that  the  Portuguese  Government  authorize 
the  company  building  the  Transvaal  section  to  construct  a  tram- 
way upon  Portuguese  territory  for  the  purpose  of  transporting 
material  for  construction  from  Lourenco  Marques,  without  hav- 
ing to  await  the  completion  of  MacMurdo's  line.  On  May  16, 
the  Minister  of  the  Colonies,  although  inclined  to  favor  the  pro- 
posal for  the  tramway,  refused  to  make  any  formal  promise  that 
might  be  construed  as  disloyal  to  existing  engagements.  Next 
day,  however,  —  May  17,  1884,  —  the  Portuguese  Government 
concluded  with  the  Transvaal  delegation  a  convention  supple- 
mentary to  that  of  1875,  to  which  was  added  a  memorandum 
granting,  in  effect,  the  request  for  the  tramway,  "provided  the 
Lourenco  Marques  company  does  not  build  its  road  with  the  speed 
necessary  to  the  assurance  that  work  may  begin  on  the  Transvaal 
railway."  The  Portuguese  Government  further  promised  to 
allow  the  tramway  to  be  used  for  the  transportation  of  passengers 
and  freight,  should  the  two  companies  be  unable  to  reach  agree- 
ment as  to  rates.  But  nothing  was  to  be  done  to  the  prejudice  of 
the  contract  of  December  14,  1883. 

This  memorandum  was  not  communicated  to  MacMurdo  or 
his  company,  nor  was  it  made  public  by  the  Portuguese  Govern- 
ment. The  Transvaal,  however,  did  not  preserve  the  same  se- 
crecy, and  news  of  it  soon  found  its  way  into  the  European  press. 
On  June  14,  a  dispatch  in  the  London  Times  from  Amsterdam 
gave  MacMurdo  his  first  intimation  about  the  tramway  conces- 
sion. As  a  consequence,  the  financing  of  the  company's  bonds 
was  rendered  difficult,  but  on  the  assurance  of  the  Portuguese 


THE  DELAGOA  BAY  RAILWAY  ARBITRATION          337 

Government  that  the  concession  for  the  tramway  was  conditional 
and  in  no  way  prejudicial  to  the  MacMurdo  contract,  the  work 
of  the  Lourenc.o  Marques  company  proceeded  and  its  plans,  duly 
submitted,  were  approved  by  the  Portuguese  Government  on 
October  30,  1884,  "without  any  prejudice  to  the  presentation  of 
a  project  for  the  latter  part  of  the  railway  up  to  the  frontier." 
The  length  of  the  line  as  stated  in  the  plans  was  approximately 
eighty-two  kilometers,  but  in  August,  1885,  the  Portuguese  Gov- 
ernment was  informed  by  its  engineer,  Major  Machado,  that  this 
estimate  was  short  of  the  true  distance,  and  that  an  additional 
section  of  nine  kilometers  was  necessary  to  bring  the  line  up  to 
the  frontier. 

On  December  28,  1885,  the  Portuguese  Government  extended 
the  period  for  completion  to  four  years  on  condition  that  the 
work  begin  before  June,  1886.  But  financial  difficulties  con- 
tinued, especially  after  the  ratification  of  the  convention  with  the 
Transvaal  was  announced,  in  February,  1886,  and  in  the  course 
of  that  year  the  company  had  to  admit  that  it  had  not  the  neces- 
sary capital  to  proceed.  Further  assurances,  however,  were  given 
by  the  Portuguese  Government  that  the  concession  had  in  no 
way  been  prejudiced,  and,  on  March  3,  1887,  the  Delagoa  Bay 
and  East  African  Railway  Company  was  formed  in  London  for 
the  purpose  of  securing  funds  to  complete  the  railway.  The 
capital  of  the  English  company  was  £500,0x30,  and  to  it  Mac- 
Murdo transferred  his  contract  with  the  Portuguese  company, 
as  well  as  the  shares  which  he  held  in  it,  and  received  in  return 
shares  in  the  English  company  to  the  full  amount  of  its  capital. 
As  a  result  of  these  financial  transactions,  the  Portuguese  com- 
pany still  remained  the  owner  of  the  MacMurdo  concession,  but 
the  English  company,  of  which  MacMurdo  was  the  chief  share- 
holder, controlled  the  Portuguese  company,  "supplied  the  funds, 
executed  the  works,  and  possessed  the  entire  property  of  the  rail- 
way." 

In  the  summer  of  1887,  the  English  company  was  informed  for 
the  first  time  by  Major  Machado  of  the  proposed  change  in  plans 
calling  for  the  extension  of  the  railway  nine  kilometers  beyond 
the  terminal  point  indicated  in  the  original  plans.  Shortly  after- 
wards, on  December  14,  1887,  the  line  of  eighty-two  kilometers 


338     NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

was  accepted  by  the  Portuguese  Government  and  opened  to 
traffic,  "with  the  express  reservation  that  neither  the  opening  of 
the  line  nor  the  official  inauguration  should  imply  prejudice  to 
the  right  of  the  government  to  compel  the  company  to  construct 
the  last  section  as  well  as  the  rest  of  the  work  necessary  to  com- 
plete the  undertaking."  In  reply  to  inquiries  as  to  the  terminal 
section  of  nine  kilometers,  the  Portuguese  Government,  on  Jan- 
uary 31,  1888,  informed  the  Portuguese  company  that  no 
decision  could  be  made  just  then,  pending  the  negotiations 
with  the  Transvaal  with  reference  to  the  boundary,  but 
when  once  the  frontier  was  denned,  a  reasonable  period  would 
be  granted  for  the  completion  of  the  line.  This  period  was 
fixed,  by  decree  of  October  24,  1888,  at  eight  months,  the  com- 
pany thus  being  required  to  complete  the  work  by  June  24, 
1889.  At  first  the  Portuguese  company  offered  only  technical 
protest,  but  on  November  30,  its  director  at  Lisbon  repre- 
sented to  the  Minister  of  the  Colonies  that  the  approaching 
rainy  season  and  the  consequent  physical  obstacles  would  make 
it  impossible  to  comply  with  the  decree  within  the  period  fixed, 
and  a  more  equitable  extension  of  time  was  requested.  This 
request  was  refused  by  the  decree  of  December  27,  1888,  accor- 
ding to  which  "the  period  allowed  should  for  all  intents  and  pur- 
poses be  maintained." 

The  heavy  rains  of  the  season  following  did  much  damage  to 
the  section  of  road  already  built,  which  further  complicated  re- 
lations between  the  company  and  the  government.  The  company, 
for  various  reasons,  was  not  able  to  let  the  contract  for  the  addi- 
tional section  until  March  27,  1889,  and  it  was  not  until  June  10 
that  the  contractor  arrived  at  Louren^o  Marques.  As  the  con- 
tract was  to  expire  in  a  few  days,  the  company  on  June  18  asked 
for  an  extension  on  the  ground  that  the  period  of  eight  months 
was  unreasonable  and  that  the  rainy  season  with  its  resultant 
damage  had  constituted  a  case  of  force  majeure  [necessity].  In 
the  meantime,  on  June  3,  the  British  Foreign  Office  had  in- 
structed its  representative  at  Lisbon  to  do  all  in  his  power  to  in- 
duce the  Portuguese  Government  to  grant  an  extension  of  time 
in  the  interests  of  the  English  company  and  at  the  same  time  to 
point  out  that  "under  these  circumstances,  the  arbitrary  confis- 


THE  DELAGOA  BAY  RAILWAY  ARBITRATION          339 

cation  of  the  British  capital  invested  in  the  concession,  which 
would  result  from  its  threatened  annulment,  would  appear  to 
Her  Majesty's  Government  to  be  altogether  without  justifica- 
tion." (Parliamentary  Papers  [1890],  Africa,  No.  i,  p.  13.)  On 
June  21,  the  British  Minister  at  Lisbon  requested  a  definite  exten- 
sion of  three  months  and  about  the  same  time  the  Secretary  of 
State  of  the  United  States  asked,  through  its  Minister  at  Lis- 
bon, that  action  be  deferred  until  it  could  examine  the  case  more 
fully  on  behalf  of  the  American  interests  involved.  These  re- 
quests were  not  complied  with,  and,  on  June  24,  the  Portuguese 
Government  proceeded  to  cancel  the  concession  and  to  take  pos- 
session of  the  railway,  in  accordance  with  article  42  of  the  con- 
tract with  MacMurdo. 

In  a  note  to  the  Portuguese  Government  the  same  day  (June 
24)  Lord  Salisbury,  the  British  Foreign  Minister,  intimated  that, 
failing  other  settlement,  the  case  would  become  one  for  diplomatic 
intervention.  The  first  step  to  that  end  was  taken  on  September 
10  in  a  communication  from  Lord  Salisbury  to  the  Government 
at  Lisbon,  which,  in  part,  was  as  follows: 

"...  Her  Majesty's  Government  are  of  opinion  that  the 
Portuguese  Government  had  no  right  to  cancel  the  concession, 
nor  to  forfeit  the  line  already  constructed. 

"They  hold  the  action  of  the  Portuguese  Government  to  have 
been  wrongful,  and  to  have  violated  the  clear  rights  and  injured 
the  interests  of  the  British  company,  which  was  powerless  to  pre- 
vent it,  and  which,  as  the  Portuguese  company  is  practically  de- 
funct, has  no  remedy  except  through  the  intervention  of  its  own 
government. 

"In  their  judgment,  the  British  investors  have  suffered  a 
grievous  wrong  in  consequence  of  the  forcible  confiscation  by  the 
Portuguese  Government  of  the  line  and  the  materials  belonging 
to  the  British  company,  and  of  the  security  on  which  the  deben- 
tures of  the  British  company  had  been  advanced;  and  that  for 
that  wrong  Her  Majesty's  Government  are  bound  to  ask  for  com- 
pensation from  the  Government  of  Portugal.  .  .  . 

"If  the  Portuguese  Government  admit  their  liability  to  com- 
pensate the  British  company  .  .  .  Her  Majesty's  Government 
will  admit  that  the  amount  of  that  compensation  is  a  proper 


340    NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

matter  for  arbitration."  (Parliamentary  Papers  [1890],  Africa, 
No.  i,  p.  58.) 

The  Government  of  the  United  States  had  also  entered  formal 
protest  on  July  i,  reserving  all  American  rights  in  the  concession. 
On  November  8,  Mr.  Elaine  set  forth  its  attitude  more  fully  in 
the  following  instructions  sent  to  the  Minister  of  the  United 
States  at  Lisbon: 

"...  Upon  full  consideration  of  the  circumstances  of  the 
case,  this  government  is  forced  to  the  conclusion  that  the  violent 
seizure  of  the  railway  by  the  Portuguese  Government  was  an 
act  of  confiscation  which  renders  it  the  duty  of  the  Government 
of  the  United  States  to  ask  that  compensation  should  be  made 
to  such  citizens  of  this  country  as  may  be  involved.  With  respect 
to  the  case  of  Colonel  MacMurdo,  who  is  now  represented  by  his 
widow,  Katherine  A.  MacMurdo,  his  sole  executrix  and  legatee, 
it  is  to  be  observed  that  by  the  terms  of  the  concession  the  com- 
pany which  he  was  required  to  form  was  to  include  himself  and 
that  his  personal  liability  was  not  merged  in  that  of  the  company. 
But  in  any  case,  the  Portuguese  company  being  without  remedy 
and  having  now  practically  ceased  to  exist,  the  only  recourse  of 
those  whose  property  has  been  confiscated  is  the  intervention  of 
their  respective  governments."  (Moore:  International  Arbitra- 
tions, vol.  n,  p.  1869.) 

In  his  note  of  November  13,  in  reply  to  Lord  Salisbury,  the 
Portuguese  Foreign  Minister  expressed  confidence  that  the  matter 
could  be  settled  by  direct  negotiation  with  agents  of  the  Portu- 
guese company,  which,  according  to  the  Portuguese  contention, 
was  still  in  existence.  In  the  event  of  failure  to  reach  such  settle- 
ment, "His  Majesty's  Government  would  not  object  to  sub- 
mit to  arbitration  the  point  under  discussion."  Provision  for 
arbitration  had  been  made  in  article  53  of  the  contract,  but 
if  found  otherwise  desirable,  it  could  be  arranged  for  "in  a 
different  form,  but,  at  the  same  time,  in  such  a  manner  as  may 
by  mutual  agreement  secure  for  the  parties  engaged  in  the  suit 
strictest  impartiality."  (Parliamentary  Papers  [1890],  Africa, 
No.  i,  p.  70.) 

During  the  negotiations  that  followed,  the  United  States  took 
a  firm  stand  for  an  international  arbitration,  and,  as  the  British 


THE  DELAGOA  BAY  RAILWAY  ARBITRATION          341 

Minister  at  Lisbon  was  instructed  to  support  the  view  of  the 
United  States,  the  three  parties  succeeded,  in  the  course  of  the 
year  1890,  in  reaching  an  agreement  to  arbitrate.  Accordingly, 
on  August  13,  1890,  identic  notes  were  sent  to  the  President  of 
Switzerland,  asking  the  Federal  Council  to  select  three  Swiss 
jurists  as  an  arbitral  tribunal  to  decide  upon  the  matter  in  dis- 
pute. The  Swiss  President,  in  his  reply  of  September  15,  1890, 
designated  as  arbitrators  Messrs.  Blaesi,  Heussler,  and  Soldan, 
and  indicated  Berne  as  the  place  of  session. 

Some  delay  was  experienced  in  arriving  at  agreement  upon  the 
protocol  which  was  to  govern  the  arbitration,  because  of  the 
claim  of  the  English  company  to  represent  all  claimants  and  to 
receive  whatever  sums  might  be  awarded.  This  point  of  differ- 
ence having  been  removed  by  providing  that  the  MacMurdo  in- 
terests should  be  entirely  controlled  by  the  United  States,  the 
protocol  was  negotiated  without  further  difficulty  and  signed 
June  13,  1891.  The  question  at  issue  was  submitted  in  article  i, 
as  follows: 

"The  mandate  which  the  three  governments  have  agreed  to 
refer  to  the  arbitration  tribunal  is,  to  fix,  as  it  shall  deem  most 
just,  the  amount  of  the  compensation  due  by  the  Portuguese 
Government  to  the  claimants  of  the  other  two  countries,  in  con- 
sequence of  the  rescission  of  the  concession  of  the  Lourengo  Mar- 
ques Railroad,  and  the  taking  possession  of  that  railroad  by  the 
Portuguese  Government,  and  thereby  to  settle  the  controversy 
existing  between  the  three  governments  on  the  subject."  (Moore: 
International  Arbitrations,  vol.  n,  p.  1874.) 

The  tribunal  was  empowered  to  fix  its  own  procedure  and  its 
award  was  to  be  "final  and  without  appeal."  The  relation  of 
the  two  governments  to  the  claims  of  their  nationals  was  strictly 
defined,  it  being  understood  that  "although  it  appertains  to 
the  arbitration  tribunal  to  designate  the  private  persons  or  the 
moral  persons  who  are  entitled  to  the  indemnity,  the  amount  of 
that  indemnity  shall  be  paid  by  the  Portuguese  Government  to 
the  other  two  governments,  in  order  that  they  may  make  dis- 
tribution of  it  to  the  claimants." 

In  various  memorials,  opinions,  and  pleadings  presented  to  the 
tribunal,  the  United  States  and  Great  Britain  maintained  that 


342     NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

the  Portuguese  Government  had  broken  its  contract  with  Mac- 
Murdo  on  three  counts: 

(1)  By  its  agreement  with  the  Transvaal  of  May  17,  1884. 

(2)  By  the  decree  of  October  24,  1888,  and  the  decree  of  an- 
nulment, June  25,  1889. 

(3)  By  its  failure  to  offer  the  road  at  public  sale,  in  accordance 
with  article  42  of  the  contract. 

1.  Under  the  contract,  the  claimant  governments  contended, 
the  concessionaire  had  secured  the  sole  right  both  to  construct 
and  to  operate,  which  latter  carried  with  it  the  right  to  fix  rates. 
The  tramway  concession  attacked  these  valuable  privileges  and 
made  it  difficult  for  the  company  to  interest  capital  in  their  en- 
terprise.  There  had  been  no  reservation  of  rights  on  the  part  of 
Portugal  with  respect  to  regulation  of  rates,  and  to  presume  it 
vested  otherwise  than  in  the  company  would  be  to  render  the 
concession  in  large  measure  valueless.    The  Transvaal  had  no 
control  over  the  company's  rights;  they  were  a  matter  for  con- 
tract with  the  Portuguese  Government,  "which  could  not  urge 
its  obligations  to  the  Transvaal  for  the  purpose  of  diminishing 
the  rights  which  it  had  granted  to  the  concessionaire." 

2.  The  cancellation  of  the  contract,  it  was  pointed  out,  was 
inconsistent  with  article  40,  which  had  accorded  to  the  company  a 
period  of  three  years,  to  date  from  the  approval  of  plans.   This 
approval  had  not  been  given,  for  the  last  section  of  nine  kilo- 
meters, until  February  23,  1889.  Hence,  on  strict  interpretation, 
three  years  from  that  date  was  the  period  fixed  by  the  contract. 
This  period  could  have  been  abridged  by  common  agreement, 
and  neither  MacMurdo  nor  the  company  would  have  objected 
to  any  reasonable  change;  but  the  term  stipulated  could  not  be 
modified  by  the  Portuguese  Government  alone,  without  consent 
of  the  other  party.   The  decree  of  October  24  was  arbitrary  and 
not  obligatory  upon  the  company.  Even  if  it  were  conceded  that 
the  Portuguese  Government  had  the  right  to  fix,  of  its  own  accord, 
a  reasonable  period  for  completion,  the  one  indicated  in  the  de- 
cree was  not  sufficient.    On  account  of  the  rainy  season,  only 
three  months  out  of  the  eight  were  suitable  for  construction. 
The  last  section  of  njne  kilometers  was  the  most  difficult  of  the 


THE  DELAGOA  BAY  RAILWAY  ARBITRATION          343 

whole  line,  and  the  government  had  taken  eight  months  to  con- 
struct it  in  the  favorable  season.  Apart  from  this,  there  were  at 
the  time  abnormal  conditions  amounting  to  the  force  majeure 
contemplated  in  the  contract.  In  fine,  the  rescission  was  an  act 
of  bad  faith,  "an  abuse  of  power,  tyrannical  and  unconstitu- 
tional," rendering  the  Portuguese  Government  liable  not  only 
for  damages  such  as  are  commonly  awarded  for  simple  non- 
execution  of  a  contract,  but  for  extraordinary  damages  of  a  penal 
character. 

3.  The  failure  to  offer  the  road  at  auction  still  further  damaged 
the  interests  of  the  claimants.  If  sold,  they  argued,  it  might  have 
realized  "a  sum  more  than  enough  to  pay  all  the  indemnity 
claimed."  The  reasons  for  this  deviation,  they  asserted,  were, 
first,  the  rate  agreement  with  the  Transvaal  company,  which  in- 
troduced conditions  incompatible  with  the  MacMurdo  conces- 
sion, and,  secondly,  the  fixed  intention  of  Portugal  to  keep  for 
itself  "a  line  which  promised  to  become  a  source  of  wealth." 

For  these  reasons  the  claimants  asked  for  an  indemnity  "equiv- 
alent to  the  loss  sustained  and  the  profit  foregone  .  .  .  provided 
always  that  the  deprivation  of  this  profit  was  the  natural  and 
direct  consequence  of  the  non-execution  of  the  contract  by  the 
other  party."  In  addition,  the  United  States  desired  that  "the 
indemnity  to  be  allowed  should  be  of  an  exemplary  and  penal 
character."  (Archives  Diplomatiques  [1900],  vol.  LXXTV,  p.  201.) 
The  total  amount  claimed  by  Great  Britain  was  £1,138,503,  by 
the  United  States,  £760,000  (including  the  value  of  the  Mac- 
Murdo "control"),  in  both  cases  exclusive  of  interest,  expenses, 
and  costs. 

In  defense  of  her  position,  Portugal  maintained  that  she  had 
both  the  right  and  the  duty  to  render  the  decree  of  rescission. 
The  right  to  rescind  is  a  sovereign  right  and  inalienable.  The 
Portuguese  Government  had  expressly  reserved  this  right  by 
articles  42  and  45  of  the  contract  with  MacMurdo,  to  be  exer- 
cised in  certain  contingencies  (supra,  p.  335),  all  of  which  had 
arisen.  The  following  reasons  could  especially  be  urged  to  justify 
the  rescission: 

i.  The  spirit  of  the  contract  had  been  violated  by  the  obsti- 
nate resistance  to  a  reasonable  agreement  upon  the  question  of 


344    NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

rates.  Such  an  agreement  was  necessary,  for  otherwise  the  line 
would  have  been  useless,  because  the  cabinet  at  Pretoria  intended 
to  renounce  its  share  of  the  undertaking,  if  reasonable  rates  were 
not  granted.  The  whole  railway  enterprise  had  been  entered 
upon  with  a  view  to  discharging  the  obligations  assumed  toward 
the  Transvaal,  and  the  concession  to  MacMurdo  had  to  be  ap- 
plied in  the  interests  of  both  countries. 

2.  The  right  to  regulate,  especially  in  the  light  of  international 
agreements,  is  inherent  in  sovereignty  and  could  not  be  presumed 
to  pass  from  Portugal.    "Portugal  could  not  abandon  to  Mac- 
Murdo her  sovereign  right  to  contract  with  the  Transvaal  in 
virtue  of  the  maxims  of  the  law  of  nations.   The  Boers  had  the 
right  to  demand  an  arrangement  as  to  rates,  and  Portugal  was 
obliged  to  accord  it." 

3.  On  the  expiration  of  the  contract,  a  large  part  of  the  neces- 
sary work  on  the  first  section  of  eighty-two  kilometers  had  not 
been  completed  or  had  proved  defective,  whereas  work  on  the 
last  section  had  scarcely  begun.  Construction  had  not  been  under- 
taken or  continued  on  a  scale  proportional  to  length,  and  the  line 
could  not  have  been  opened  within  the  period  fixed  or  even  after 
long  delay. 

4.  The  period  assigned  for  completion  of  the  road  expired  on 
June  24,  1889.   Originally  it  was  to  end  on  October  30,  1887,  and 
subsequent  extensions  did  not  modify  the  date  at  which  the  period 
of  three  years  began;  they  were  acts  of  grace,  emanating  from 
sovereignty  and  not  requiring  consent  of  the  other  party.    The 
plans  for  the  first  section  had  been  approved  with  a  reservation 
as  to  the  latter  part  of  the  line  (supra,  p.  337),  and  the  government 
was  bound  to  file  plans  for  this  section  only  in  time  to  enable  the 
whole  to  be  completed  in  three  years.   The  fact  that  these  plans 
were  not  communicated  to  the  company  until  July  27,  1887,  was 
without  significance,  because  the  company  itself  was  to  send  out 
an  engineer  to  make  the  surveys.   It  was  not  a  question  of  con- 
structing nine  kilometers,  but  of  defining  the  frontier.  The  latter 
part  of  the  road  was  easy  of  construction  and  the  company  had 
expressed  itself  as  having  nothing  to  object  to,  if  the  frontier  was 
as  indicated.  The  rainy  season  was  no  obstacle,  for  it  could  have 
been  spent  in  assembling  men  and  materiel,  and  the  contractor, 


THE  DELAGOA  BAY  RAILWAY  ARBITRATION          345 

Sir  Thomas  Tancred,  had  undertaken  to  construct  the  first  eighty- 
two  kilometers  for  the  English  company  in  a  similar  period  of 
eight  months. 

As  for  the  argument  of  force  majeure,  it  was  infected  with  the 
negligence  of  the  company,  for  it  had  let  almost  the  entire  period 
of  eight  months  go  by  without  taking  steps  to  complete  the  road. 
The  damages  to  the  first  section  had  been  due  to  faulty  construc- 
tion and  could  not  be  held  to  justify  delay.  In  the  words  of  the 
Portuguese  argument,  "all  the  motives  alleged  by  the  conces- 
sionaire hi  justification  of  the  failure  to  construct  the  latter  part 
of  the  line  have  been  only  pretexts  to  conceal  the  financial  weak- 
ness of  the  two  companies  and  the  designs  of  their  dictator,  who 
wished  to  keep  this  weapon  in  his  hands  to  exercise  pressure  upon 
the  Transvaal."  (Archives  Diplomatiques  [1900],  vol.  LXXTY,  p. 
205.) 

In  estimating  indemnity,  Portugal  contended,  the  claimants 
could  not  demand  the  value  of  the  shares  in  the  English  company, 
nor  could  a  proper  estimate  be  put  upon  the  MacMurdo  "con- 
trol." The  price  at  auction  would  have  been  the  proper  basis  of 
value,  but  the  auction  had  not  been  held  because  it  had  been 
forestalled  by  diplomatic  intervention.  As  an  equivalent  settle- 
ment, however,  the  Portuguese  Government  offered  to  pay  the 
sum  by  which  it  had  been  enriched  through  the  possession  of  the 
road  —  less  £28,000  already  paid  to  the  account  of  the  British 
Government,  and  £15,000  deposited  by  the  concessionaire  with 
the  Portuguese  Government  as  a  guarantee  that  engagements 
would  be  kept,  and  forfeited  in  consequence  of  the  non-fulfillment 
of  the  contract,  but  later  given  back  to  the  company. 

Although  the  tribunal  was  constituted  in  1890,  the  award 
was  not  rendered  until  March  29,  1900,  owing  to  long 
delays  in  the  conduct  of  the  proceedings,  due  in  part  to  the 
necessity  of  sending  experts  to  Africa  to  make  reports  on  ques- 
tions of  fact. 

In  the  opinion  of  the  arbitrators,  the  rescission  of  the  contract 
was  final  and  could  not  be  reopened.  Only  the  question  of  the 
amount  of  compensation  due  was  before  the  tribunal,  which  had 
been  asked  to  award  what  it  considered  equitable.  But  prelimi- 
nary to  this,  it  was  necessary  to  determine  what  law  was  appli- 


346    NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

cable  to  the  case.  The  Portuguese  company  alone  could  be  con- 
sidered as  having  relations  with  the  government,  the  English 
company  being  merely  the  proprietor  of  a  majority  of  shares  in 
the  former.  The  enterprise  had  never  ceased  to  be  Portuguese 
and  the  government  had  never  allowed  the  concession  to  be  trans- 
ferred. Hence,  Portuguese  law  was  to  be  applied,  provided  it 
did  not  run  counter  to  the  accepted  principles  of  international 
law. 

The  tribunal  considered  the  question  at  issue  to  reduce  itself 
to  this:  Whether  or  not  the  government  was  justified  in  the  asser- 
tion that  the  work  had  not  been  continued  on  a  scale  propor- 
tionate to  the  length,  or  that  the  railway  had  not  been  completed 
"within  the  terms  and  periods  fixed  in  article  40."  But  the  an- 
swer to  this  depended  upon  the  answer  to  a  previous  question: 
What  was  the  period  of  three  years  in  article  40  and  when  did  it 
expire?  There  had  been  an  approval  of  plans  on  two  occasions  — 
October  30,  1884,  and  February  23,  1889.  From  which  was  the 
period  fixed  for  completion  to  date?  The  tribunal  held  that  under 
the  contract  the  government  had  to  furnish  plans  of  the  entire 
line,  to  be  examined  by  MacMurdo's  engineers  with  a  view  to 
making  modifications,  if  desired.  But  an  extension  of  eight  or 
nine  kilometers  was  not  a  modification  within  the  spirit  of  the 
contract.  Hence,  the  tribunal  concluded,  "the  concessionaire 
was  justified  in  assuming  in  good  faith  that  the  plans,  as  furnished 
to  him,  represented  the  entire  length  of  the  road;  and  the  Portu- 
guese Government  itself  appeared  to  have  been  of  this  opinion, 
at  least  at  the  time  the  contract  was  made."  The  plea  that  the 
government  had  to  await  an  agreement  with  the  Transvaal  with 
reference  to  the  frontier  before  the  plans  for  the  last  section  could 
be  definitely  submitted,  was  not  considered  by  the  tribunal  to  be 
pertinent,  for  the  government  might  have  renounced  (as  it  did 
later)  the  preliminary  agreement  with  the  Transvaal  and  have 
fixed  the  terminus  of  its  own  accord,  or  have  left  matters  in  sus- 
pense until  a  settlement  with  the  Transvaal  could  be  brought 
about.  It  was  clear  that,  under  article  40,  the  period  within 
which  the  last  section  was  to  be  completed  did  not  commence  to 
run  until  the  plans  for  it  had  been  approved  —  that  is,  from 
February  23,  1889;  and  the  concession  contained  no  clause  au- 


THE  DELAGOA  BAY  RAILWAY  ARBITRATION          347 

thorizing  the  government  to  fix  of  its  own  accord  any  period  "  to 
replace  for  all  intents  the  period  indicated  in  article  40."  A  new 
agreement  should  have  been  made  regarding  the  final  section,  or, 
failing  this,  the  matter  should  have  been  referred  to  arbitration 
as  provided  in  article  53.  As  it  was,  the  government  had  assumed 
the  r61es  of  party  and  judge,  acting  in  a  manner  "decidedly  inad- 
missible and  contrary  to  the  text  of  the  concession  as  well  as  to 
its  bilateral  character." 

The  tribunal  further  considered  that  the  Portuguese  Govern- 
ment was  estopped  from  making  any  objections  on  the  ground  of 
defective  construction,  since  no  official  statement  had  been  issued 
on  the  matter.  Besides,  it  was  difficult  to  distinguish  between 
original  defects  and  the  damage  wrought  by  floods. 

Having  arrived  at  the  conclusion  that  "the  decree  of  rescission 
and  the  taking  possession  of  the  railway  had  not  been  carried  out 
in  conformity  with  the  contract  of  concession,"  the  tribunal  ruled 
that  there  was  but  one  principle  of  law  applicable  to  the  fixing 
of  the  compensation  —  that  of  dommages  et  interets,  comprising,  in 
accordance  with  the  rules  of  law  universally  admitted,  damnum 
emergens  (the  actual  loss  sustained)  and  lucrum  cessans  (the  ces- 
sation of  profit).  {Archives  Diplomatiqttes,  vol.  LXXIV,  p.  214.) 
The  action  of  the  government,  however,  was  illegal  in  form  rather 
than  in  substance,  for  the  eight  months  accorded  could  not  be 
considered  an  unreasonable  period.  Further,  the  company,  when 
asked  what  time  it  would  deem  sufficient,  had  remained  silent  and 
had  even  acquiesced  in  the  period  fixed.  Hence,  in  the  judgment 
of  the  tribunal,  the  government  was  relieved  from  damages  of  a 
penal  character,  "such  as  might  have  been  claimed  by  a  person 
who  was  the  victim  of  arbitrary  treatment  absolutely  unmerited." 

The  tribunal  did  not  consider  that  the  failure  to  put  the  road 
up  at  auction  called  for  indemnity,  diplomatic  intervention  having, 
in  its  opinion,  absolved  the  government  from  this  obligation.  Nor 
was  the  Transvaal  memorandum  of  May  17,  1884,  held  to  be  a 
cause  of  delay,  assessable  in  damages;  other  reasons,  especially 
lack  of  finances,  were  sufficient  to  explain  the  company's  in- 
action. 

On  the  indemnity  awarded,  moratory  interest  was  allowed  at 
the  rate  of  5  per  cent,  simple  interest,  in  conformity  with  Portu- 


348     NATIONALITY  AND  PROTECTION  OF  CORPORATIONS 

guese  commercial  law,  as  well  as  with  "the  method  of  calculation 
generally  adopted  in  the  matter  of  moratory  interest." 

In  accordance  with  these  reasons  the  tribunal  awarded,  as 
follows: 

"The  Delagoa  Bay  court  of  arbitration,  created  by  the  arbitra- 
tion convention  signed  at  Berne,  June  13,  1891,  by  the  representa- 
tives of  Portugal,  the  United  States  of  North  America,  and  Great 
Britain,  being  charged  by  said  convention  with  the  duty  of  'fix- 
ing, as  it  shall  deem  most  just,  the  amount  of  the  compensation 
due  from  Portugal  to  the  claimants  of  the  two  other  countries  in 
consequence  of  the  cancellation  of  the  concession  of  the  Lourengo 
Marques  Railway  and  of  the  taking  possession  of  said  railway  by 
the  Portuguese  Government,'  said  court  being  composed  of  the 
three  arbitrators  designated  by  the  Swiss  Federal  Council,  to 
wit:  Joseph  Blaesi,  at  that  time  vice-president,  and  now  a  mem- 
ber of  the  Federal  Court  at  Lausanne,  President;  Andreas  Heus- 
ler,  LL.D.,  professor  of  law  at  the  University  of  Basel;  Charles 
Soldan,  at  that  time  President  of  the  Council  of  State  of  the 
Canton  of  Vaud,  and  now  a  member  of  the  Federal  Court  at 
Lausanne;  after  the  preparation  of  the  case,  after  an  examination 
of  the  papers  exchanged  and  of  the  documents  produced  in  the 
course  of  the  proceedings,  and  also  of  the  reports  of  the  technical 
experts  appointed  by  the  court;  deciding  concerning  the  funda- 
mental question,  after  hearing  the  arguments  of  the  parties,  says 
and  pronounces  as  follows: 

"i.  The  Government  of  Portugal,  the  defendant,  is  sentenced 
to  pay  to  the  Government  of  the  United  States  of  North  America 
and  that  of  Great  Britain,  the  plaintiffs,  in  addition  to  the  £28,000 
paid  on  account  in  1890,  the  sum  of  15,314,000  francs  in  Swiss 
lawful  money,  with  simple  interest  on  said  sum,  at  the  rate  of  5 
per  cent  per  annum,  from  the  25th  day  of  June,  1899,  to  the  day 
on  which  payment  shall  be  made. 

"2.  This  sum,  after  the  deduction  of  what  shall  be  necessary 
to  meet  the  costs  of  the  arbitration,  which  are  payable  by  the 
plaintiffs,  and,  besides,  the  balance  remaining  due  of  the  amount 
on  which  £28,000  were  paid  on  account  in  1890,  shall  be  applied 
to  the  payment  of  the  holders  of  the  debenture  bonds  of  the  De- 
lagoa Bay  Company,  and  to  the  payment  of  other  creditors  of 


THE  DELAGOA  BAY  RAILWAY  ARBITRATION          349 

said  company,  if  any  there  be,  according  to  the  category  of 
each. 

"The  plaintiffs  shall  prepare,  to  this  effect,  a  schedule  of  dis- 
tribution. 

"The  Government  of  Portugal  shall  pay  to  that  of  the  United 
States  the  sum  which,  according  to  said  schedule,  Mrs.  Mac- 
Murdo,  who  is  represented  by  the  latter  government,  shall  be 
entitled  to  receive  as  a  holder  of  first  and  second  debenture 
bonds. 

"It  shall  pay  the  remainder  to  the  Government  of  Great  Brit- 
ain for  the  account  of  all  the  other  claimants. 

"3.  The  period  of  six  months,  fixed  by  the  last  paragraph  of 
article  4  of  the  arbitration  convention,  shall  begin  to-day. 

"4.  As  to  the  expenses:  The  expenses  incurred  by  each  party 
shall  be  paid  by  it.  The  costs  of  the  arbitration,  according  to  the 
statement  to  be  furnished  in  conformity  with  article  5  of  the  con- 
vention, shall  be  equally  borne  by  the  three  parties  concerned; 
that  is  to  say,  one-third  by  each  of  them. 

"5.  The  petitions  of  the  parties,  so  far  as  they  differ  from  the 
above  conclusion,  are  rejected. 

"6.  An  authentic  copy  of  this  award  shall  be  transmitted, 
through  the  Swiss  Federal  Council,  to  each  of  the  three  parties 
concerned. 

"Thus  decided  at  a  session  of  the  court  of  arbitration,  and 
issued  at  Berne  this  29th  day  of  March,  1900. 

"BLAESI, 
"A.  HEUSLER, 
"CHARLES  SOLDAN, 

"Arbitrators. 
"BRUSTLEIN, 

"Secretary." 

(Moore:  International  Arbitrations,  vol.  n,  pp.  1865-99;  Parlia- 
mentary Papers  [1890],  Africa,  No.  i ;  Archives  Diplomatiques[igoo}, 
vol.  Lxxm,  pp.  341-68;  vol.  LXXTV,  pp.  171-227;  Foreign  Relations 
of  the  United  States,  1900,  pp.  901-02.) 


350         NATIONALITY  AND  PROTECTION  OF  VESSELS 

§39.   NATIONALITY  AND   PROTECTION   OF  VESSELS 


THE  DHOWS  OF  MUSCAT 
FRANCE  AND   GREAT  BRITAIN 

The  Permanent  Court  of  Arbitration  at  The  Hague,  1905 

ON  the  i3th  of  October,  1904,  Lord  Lansdowne,  the  British 
Foreign  Secretary,  and  M.  Cambon,  the  French  Ambassador  at 
London,  concluded  an  agreement  between  Great  Britain  and 
France,  the  preamble  of  which  was  as  follows: 

"Whereas  the  Government  of  His  Britannic  Majesty  and  that 
of  the  French  Republic  have  thought  it  right,  by  the  Declaration 
of  the  loth  March,  1862,  'to  engage  reciprocally  to  respect  the 
independence'  of  His  Highness  the  Sultan  of  Muscat; 

"And  whereas  difficulties  as  to  the  scope  of  that  declaration 
have  arisen  in  relation  to  the  issue,  by  the  French  Republic,  to 
certain  subjects  of  His  Highness  the  Sultan  of  Muscat  of  papers 
authorizing  them  to  fly  the  French  flag,  and  also  as  to  the  nature 
of  the  privileges  and  immunities  claimed  by  subjects  of  His  High- 
ness who  are  owners  or  masters  of  dhows  and  in  possession  of 
such  papers  or  are  members  of  the  crew  of  such  dhows  and  their 
families,  especially  as  to  the  manner  in  which  such  privileges  and 
immunities  affect  the  jurisdiction  of  His  Highness  the  Sultan  over 
his  said  subjects; 

"The  undersigned,  being  duly  authorized  thereto  by  their  re- 
spective governments,  hereby  agree  that  these  questions  shall  be 
determined  by  reference  to  arbitration,  in  accordance  with  the 
provisions  of  article  i  of  the  convention  concluded  between  the 
two  countries  on  the  i4th  October  last,  and  that  the  decision  of 
The  Hague  Tribunal  shall  be  final." 

The  Sultan  of  Muscat  is  an  independent  Mohammedan  sov- 
ereign ruling  over  that  part  of  eastern  and  southern  Arabia  known 
as  Oman.  Formerly  the  sultanate  included  Zanzibar,  but  in  1856 
the  latter  became  independent  and  later,  in  1890,  passed  under 
the  "protection  of  Great  Britain.  As  is  the  practice  in  Moslem 
countries,  various  treaties  with  western  nations  have  been  made 


THE  DHOWS  OF  MUSCAT  351 

by  the  rulers  of  Muscat,  in  which  are  granted  the  usual  privi- 
leges of  extraterritoriality.  As  the  controversy  over  the  dhows 
had  its  origin  in  the  conflicting  interpretation  given  to  certain 
of  these  treaties,  it  will  elucidate  the  matter  in  dispute  to  enu- 
merate the  chief  conventional  agreements  affecting  the  relations 
of  Oman  with  the  parties  to  the  arbitration.  They  are  as  follows: 

1.  On  November  17,  1844,  was  concluded  a  treaty  of  friendship 
and  commerce  between  France  and  Muscat,  whereby  the  nationals 
of  each  were  accorded  reciprocal  commercial  privileges  on  the 
most-favored  nation  basis.   The  provisions  upon  which  France  in 
large  part  based  her  case  are  the  following: 

"Art.  3.  ...  The  French  cannot,  under  any  pretext,  be  res- 
trained of  their  liberty  in  the  dominions  of  the  Sultan  of 
Muscat. 

"Art.  4.  The  subjects  of  His  Highness  the  Sultan  of  Muscat 
-who  may  be  in  the  service  of  the  French  [au  service  des  Fran$ais] 
are  to  enjoy  the  same  protection  as  the  French  themselves.  .  .  ." 

2.  Similar  treaties  have  been  made  at  various  times  with 
Great  Britain,  the  latest  on  August  19,  1891.    In  these  are  gen- 
erous concessions  of  commercial  privileges  and  extraterritorial 
jurisdiction,  which  the  French  enjoy  also  by  reason  of  the  most- 
favored-nation  clause  in  the  Treaty  of  1844. 

3.  Other  treaties  have  been  made  between  Great  Britain  and 
the  Sultan  of  Muscat  with  a  view  to  the  suppression  of  the  slave 
trade,  the  Sultan  undertaking  to  prevent  his  subjects  from  en- 
gaging hi  any  way  in  such  trade. 

4.  In  1862  a  joint  declaration  was  signed  at  Paris  whereby 
Great  Britain  and  France  "deemed  it  advisable  to  make  a  re- 
ciprocal engagement  to  respect  the  independence"  of  the  Sultan 
of  Muscat  and  the  Sultan  of  Zanzibar. 

5.  In  1890  the  Brussels  Conference  on  the  slave  trade  adopted 
a  general  act  by  which  the  signatory  powers  agreed  upon  meas- 
ures of  cooperation  in  their  efforts  to  suppress  the  traffic.   The 
general  act  was  ratified  by  France  in  1892,  subject,  however,  to 
reservations  in  which  France  refused  to  admit  the  right  of  visit 
and  search,  as  applying  to  vessels  under  the  French  flag,  or  the 
right  to  detain  said  vessels  on  suspicion  of  engaging  in  the  slave 
trade.   The  Sultan  of  Muscat  did  not  sign  the  act,  his  engage- 


352         NATIONALITY  AND  PROTECTION  OF  VESSELS 

ments  in  the  matter  being  defined  by  his  treaties  with  Great 
Britain. 

As  stated  in  the  preamble  quoted,  the  cause  of  the  controversy 
was  the  issuing  by  French  consular  and  colonial  officials  of  ships' 
papers  (litres  de  navigation)  and  French  flags  to  many  of  the 
Sultan's  subjects,  in  excess  of  the  privileges  accorded  France  by 
the  Treaty  of  1844.  Few  French  citizens  have  resided  in  the  sul- 
tanate and  hence  few  of  the  Sultan's  subjects  can  claim  extra- 
territorial status  by  reason  of  having  been  in  the  service  of  French 
residents.  But  many  owners  of  Arab  dhows,  finding  the  French 
flag  convenient  for  the  purpose  of  avoiding  search,  sought  and 
obtained  the  right  to  fly  it,  especially  since  the  Brussels  Act  of 
1800.  The  result  was  that  natives  of  Oman,  having  no  domicile  in 
French  territory  and  no  authorization  to  change  their  national- 
ity, claimed  to  be  under  the  protection  of  France,  even  when  in 
the  territories  of  the  Sultan,  and  to  be  completely  removed  from 
his  jurisdiction  over  their  property  and  persons.  The  Sultan  pro- 
tested that  by  such  practice  France  was  withdrawing  his  subjects 
from  their  allegiance,  and  even  as  early  as  1891,  on  the  representa- 
tions of  Great  Britain,  M.  Ribot,  the  French  Minister  for  Foreign 
Affairs,  announced  that  in  future  French  Consuls  would  be  pre- 
vented from  making  such  grants.  They  continued  to  be  issued, 
however,  especially  to  the  owners  of  dhows  in  Sur,  a  town  in  the 
sultanate  of  Muscat.  In  1897,  and  again  in  1899,  the  Sultan 
renewed  his  protests  to  the  French  Consul  at  Muscat,  chiefly  on 
the  ground  that  the  action  of  France  was  contrary  to  the  Declara- 
tion of  1862,  and  in  1900  he  ordered  his  subjects  to  refrain  from 
accepting  flags  and  papers  from  foreign  governments.  The  sub- 
ject became  a  matter  for  discussion  between  the  French  and 
British  Governments,  and  in  1902  an  exchange  of  views  took 
place  which  promised  a  satisfactory  settlement.  But  in  1903 
some  incidents  occurred  to  reopen  the  controversy,  especially 
one  in  which  five  Suris,  subjects  of  the  Sultan,  were  sentenced  by 
him  to  a  term  of  imprisonment  for  breaking  quarantine.  Three 
of  these  were  French  proteges,  and  the  French  Consul  promptly 
claimed  their  release.  The  Sultan  was  upheld  in  his  action  by  the 
British  Consul  and  the  British  Government,  to  whom  he  had  ap- 
pealed, and  after  friendly  representations  to  the  French  Govern- 


THE  DHOWS  OF  MUSCAT  353 

ment,  it  was  agreed  to  refer  the  question  at  issue  to  the  Permanent 
Court  of  Arbitration. 

A  tribunal,  constituted  in  accordance  with  the  agreement,  met 
at  The  Hague  on  July  25,  1905,  under  the  presidency  of  M.  Lam- 
masch,  of  Austria,  who  was  nominated  by  the  King  of  Italy  at 
the  request  of  the  parties  to  the  arbitration.  The  other  two  mem- 
bers were  Chief- Justice  Fuller,  of  the  United  States,  designated 
by  Great  Britain,  and  Jonkheer  A.  F.  de  Savornin  Lohman,  desig- 
nated by  France.  Four  sessions  were  held  and  the  award  was 
rendered  August  8,  1905. 

In  support  of  its  practice  of  "francisation,"  so-called,  France 
relied  in  a  general  way  upon  the  nature  of  the  capitulations  in 
Mohammedan  countries,  the  specific  Treaty  of  1844,  and  the 
municipal  ordinances  of  the  French  colonial  administration.  The 
origin  of  the  francised  dhows  dated  from  the  acquisition  of  the 
French  colonies  on  the  east  littoral  of  Africa.  When  France  took 
possession,  many  Omani  owners  of  dhows  had  intimate  commercial 
relations  with  that  region,  some  of  them  owning  plantations  and 
engaging  in  commerce  on  their  own  account;  but  after  the  occu- 
pation by  France,  they  became  auxiliaries  of  the  French  mer- 
chants and  shipowners.  Before  this  time,  they  flew  no  flag,  unless 
it  was  the  Arab  red  flag,  which  had  merely  religious  significance, 
they  carried  no  papers,  and  some  of  them  had  even  no  personal 
status,  for  "they  could  "not  be  considered  as  having  any  country 
but  the  ocean."  To  exercise  supervision  over  Arab  commerce  as 
well  as  to  suppress  the  slave  trade  more  efficaciously,  a  maritime 
bureau  was  created  at  Mayotte,  and,  from  that  time  on,  the 
French  flag  and  papers  (litres)  began  to  be  granted  to  the  Arab 
dhows,  one  of  the  earliest  of  these  documents  dating  from  1845. 
The  process  of  francisation  was  strictly  regulated  by  the  colonial 
authorities.  A  boat  had  to  be  the  property  of  French  citizens  or 
corporations  or  of  natives  having  a  commercial  domicile  in  a 
French  colony  or  owning  property  there.  Extreme  circumspec- 
tion had  been  shown  in  these  grants  of  francisation  and  in  each 
case  the  license  was  for  a  year  only  and  had  to  be  renewed.  The 
owner  of  a  dhow  seeking  such  grant  must  furnish  proof  of  his 
qualifications;  in  1875  it  was  ordered  that  such  persons  must 
have  property  in  the  French  colonies,  have  an  honorable  reputa- 


354         NATIONALITY  AND  PROTECTION  OF  VESSELS 

tion,  and  be  in  a  position  to  furnish  all  guarantees.  Among  others 
settling  definitely  in  French  colonies  or  emigrating  without  in- 
tention to  return  were  some  originally  from  Oman.  These 
Omanis  were  in  the  habit  of  making  long  voyages,  were  polyga- 
mous, with  domestic  establishments  in  various  places,  but  with 
their  principal  domicile  in  French  territory,  especially  the  Suns, 
who  had  always  claimed  to  be  independent  of  the  Sultan  of  Mus- 
cat. French  legislation  would  permit  these  Omani  traders  to  ac- 
quire easily  the  quality  of  French  citizens,  but  out  of  deference 
to  the  sovereignty  of  the  Sultan,  the  grant  had  usually  been  one 
of  protection  instead  of  citizenship.  However,  having  obtained 
this  right  to  French  protection,  these  Omanis  did  not,  on  a  tem- 
porary return  to  Muscat,  lose  this  right,  for  they  were  still  pro- 
teges of  France  and  possessors  of  real  estate  within  French  juris- 
diction. This  was  quite  within  the  spirit  and  the  practice  of  the 
capitulations  in  force  in  non-Christian  countries  and  in  this  specific 
case  was  clearly  to  be  inferred  from  the  Treaty  of  1844,  which 
admitted  protection  to  subjects  of  Oman  in  the  service  of  French- 
men, which  service  would  include  all  those  carrying  on  the  com- 
mercial relations  that  the  treaty  was  intended  to  develop.  Fur- 
ther, some  of  the  owners  of  dhows  had  become  denationalized 
and  could  not  be  regarded,  when  in  Oman,  as  within  the  jurisdic- 
tion of  the  Sultan,  for  the  latter  had  not  voluntarily  protested 
against  emigration  or  put  forward  a  claim  to  indelible  allegiance. 
Possibly,  on  occasion,  it  might  be  hard  to  establish  personal 
status  in  the  absence  of  documents,  but  France  had  not  hesitated 
to  disavow  the  zeal  of  its  officials  when  in  the  wrong.  As  for  the 
accusation  that  the  slave  trade  was  facilitated  by  the  francisa- 
tion  of  the  dhows,  the  evidence  offered  was  largely  hearsay  or 
based  upon  native  depositions  taken  under  unfair  circumstances. 
The  few  exceptions  where  there  was  real  guilt  had  been  punished 
rigorously,  as  in  the  case  of  two  dhows  in  1897  convicted  of  hav- 
ing been  engaged  in  the  transportation  of  slaves. 

France  also  contended  that  the  intervention  of  Great  Britain 
in  the  affairs  of  Muscat  was  inadmissible,  for  the  Declaration  of 
1862  was  not  affected.  The  francisation  of  the  dhows  found  its 
sanction  in  the  Treaty  of  1844  and  no  attempt  had  been  made 
under  it  to  derogate  from  the  sovereignty  of  the  Sultan.  If  there 


THE  DHOWS  OF  MUSCAT  355 

had  been,  he  alone  had  the  right  to  complain.  As  a  matter  of 
fact,  there  had  been  no  complaint  from  1863  to  1895,  and  it  was 
only  because  Indian  officials  had  established  political  influence 
in  Muscat,  that  the  granting  of  French  litres  to  the  dhows  had 
suddenly  been  represented  as  a  violation  of  the  treaty  with  Mus- 
cat. The  present  Sultan  was  under  financial  pressure  from  Great 
Britain,  being  dependent  upon  the  Zanzibar  subsidy  which  was 
paid  through  the  Government  of  India.  The  actual  authority 
of  the  Sultan  had  been  much  restricted:  Great  Britain  had  made 
treaties  with  several  of  the  chiefs  quite  independently  of  the 
Sultan;  indeed,  the  treaties  made  with  the  Sultan  himself  were 
hard  to  reconcile  with  his  independence.  A  British  protectorate 
had  been  established  in  fact  at  Muscat,  and  British  desire  to  con- 
trol not  only  the  affairs  of  Muscat  but  the  commerce  of  the  Per- 
sian Gulf  and  the  Indian  Ocean  was  at  the  base  of  all  the  diffi- 
culties that  had  arisen  hi  the  relations  of  France  with  Muscat. 

With  respect  to  the  particular  incidents  that  had  given  rise  to 
the  present  arbitration,  France  recognized  the  right  of  the  Sultan 
to  make  rules  concerning  sanitation,  etc.,  provided  they  did  not 
impose  taxes  upon  French  nationals  or  prot6g£s.  While  the  Sultan 
had  complete  sovereignty  over  his  ships  in  his  territorial  waters, 
he  had  none  over  French  ships,  and  hence  could  not  delegate  to 
any  state  —  Great  Britain,  for  instance  —  rights  which  did  not 
belong  to  him.  Nor  did  the  Brussels  Act  take  away  any  rights  that 
France  had  in  Omani  waters.  It  merely  affirmed  the  status  es- 
tablished by  the  Treaty  of  1844,  which  is  always  to  be  interpreted 
in  the  general  sense  of  the  capitulations  in  Moslem  countries. 

In  reply  to  the  contentions  of  France,  Great  Britain  gave  a 
general  denial  to  the  statements  of  fact.  There  had  been  no 
trenching  upon  the  sovereignty  of  the  Sultan,  though  assistance 
had  sometimes  been  given  him  to  put  down  rebellion  against  his 
authority.  The  fact  that  several  Arab  rulers,  including  the  Sul- 
tan of  Muscat,  had  made  treaties  giving  Great  Britain  the  right 
of  preemption  in  case  of  alienation  did  not  impair  their  independ- 
ence. Such  treaties  merely  provided  against  certain  contingen- 
cies; they  "tend  to  preserve  and  not  to  destroy  the  state  which 
enters  into  the  arrangements."  The  so-called  "trucial"  chiefs 
with  whom  Great  Britain  had  made  treaties  were  not  under  the 


356         NATIONALITY  AND  PROTECTION  OF  VESSELS 

sovereignty  of  the  Sultan;  Great  Britain  had  dealt  with  them 
as  independent  rulers  forty  years  before  the  Declaration  of 
1862. 

With  regard  to  the  arguments  advanced  by  France  in  support 
of  the  practice  of  francisation,  Great  Britain  maintained  that  no 
warrant  for  it  could  be  found  hi  the  Treaty  of  1844.  That  treaty 
was  on  the  strict  basis  of  extraterritoriality;  "it  contains  no  sur- 
render of  the  Sultan's  right  of  police  over  his  waters,  and  grants 
no  right  to  France  to  exercise  that  police."  Only  Omanis  who  were 
actually  in  the  service  of  French  citizens  were  within  the  juris- 
diction of  French  Consuls  in  Oman.  Nor  was  there  any  validity 
in  the  other  claim  —  put  forward  by  M.  Cambon  in  1903  —  that 
those  possessing  this  right  to  fly  the  French  flag  were  outside  the 
treaty  and  that  they  were  entitled  to  protection  from  the  mere 
fact  that  the  flag  had  been  granted  them.  Such  a  claim  "involves 
an  assertion  of  the  right  of  France  spontaneously  to  create  as 
many  proteges  as  it  chooses  in  Muscat  .  .  .  and  the  claim  is 
equally  applicable  to  the  subjects  of  any  European  power  in  the 
territories  of  their  natural  sovereign  —  a  contention  which  no 
civilized  state  would  for  a  moment  admit."  If  a  foreign  state  were 
to  have  the  unquestioned  right  to  say  just  who  its  proteges  were, 
it  could  "transfer  to  its  protection  masses  of  a  foreign  population 
residing  in  their  own  country,  and  .  .  .  create  semi-independent 
communities  within  the  borders  of  a  friendly  state." 

On  the  maui  question  of  international  law  involved  —  the  im- 
port of  domicile  —  Great  Britain  pointed  out  that  domicile  is  not 
equivalent  in  effect  to  nationality.  It  may  give  "certain  rights 
in  the  country  in  which  it  is  acquired  .  .  .  but  it  gives  no  title 
to  protection  as  a  national  in  other  countries,  least  of  all  hi  that 
of  origin."  The  burden  of  proof  that  the  domicile  of  origin  had 
been  lost  and  the  quality  of  French  protege  had  been  acquired  lay 
in  each  case  upon  those  making  such  claims,  and  France  should 
see  to  it  that  such  proof  was  furnished  to  the  Sultan.  Under  the 
Declaration  of  1862,  France  could  not  withdraw  any  subject  of 
the  Sultan  from  his  allegiance,  nor  could  she,  under  the  Brussels 
Act,  grant  French  flags  or  papers  to  any  native  vessel  unless  owned 
by  a  French  citizen  or  by  a  subject  of  a  protectorate  of  France. 
Should  a  native  of  Oman  accept  such  papers  and  flags,  he  could 


THE  DHOWS  OF  MUSCAT  357 

not  thereby  withdraw  either  himself,  his  crew,  family,  or  employes 
from  the  jurisdiction  of  the  Sultan  when  within  the  territories 
or  territorial  waters  of  Oman.  Nor,  should  such  Omani  be  the 
owner,  captain,  or  a  member  of  the  crew  of  a  francised  dhow, 
could  he  be  considered  a  proteg6  within  the  provision  of  the 
Treaty  of  1844,  for  "the  phrase  au  service  clearly  implies  engage- 
ment in  the  capacity  of  a  clerk  or  domestic  or  some  subordinate 
capacity;  and  it  cannot  include  all  persons  with  whom  Frenchmen 
happen  to  have  contracts  of  a  commercial  nature."  Merely  voy- 
aging to  a  French  colony  did  not  give  them  this  right. 

As  for  the  regime  of  capitulations  and  its  application  to  rela- 
tions with  Muscat,  Great  Britain  contended  that  it  was  not  pos- 
sible to  argue  from  the  concessions  in  one  Oriental  country  to 
those  in  another.  Besides,  France  was  seeking  to  extend  protec- 
tion, not  to  Christians,  as  the  capitulations  contemplate,  but  to 
Arab  dhow  owners. 

Great  Britain  further  maintained  that  these  litres,  granted 
with  respect  to  a  particular  vessel,  could  not  be  made  the  object  of 
inheritance  or  transfer.  "The  question  in  each  case  is  one  of 
personal  status." 

In  conclusion,  Great  Britain  submitted  that  "France  should 
with  all  reasonable  dispatch,  erase  from  her  marine  registers  all 
native  vessels  owned  by  subjects  of  the  Sultan  of  Muscat,  and, 
in  cooperation  with  the  Sultan,  should  take  steps  to  obtain  the 
surrender  of  all  French  flags  and  papers  now  held  by  any  such 
subjects." 

The  tribunal,  in  rendering  its  decision  on  the  first  question,  — 
that  of  the  right  to  fly  the  French  flag,  —  recognized  that  every 
sovereign  had  the  right  to  determine  who  should  fly  his  flag,  and 
hence,  as  far  as  the  general  rule  of  law  was  concerned,  the  French 
Government  might  grant  this  right  to  subjects  of  Muscat.  But 
a  sovereign  might  be  limited  by  treaties  and,  in  the  case  of  the 
right  in  question,  the  Brussels  Act  had  imposed  limitations  for  the 
purpose  of  suppressing  the  slave  trade.  France  was  party  to  this 
act,  according  to  which  fitters-out  or  owners  of  native  vessels 
must  be  subjects  or  proteges  of  the  power  whose  flag  they  claim 
to  fly.  The  term  prot6g6  was  not  defined  in  the  Brussels  Act,  but 
its  connotation  underwent  a  restriction  in  virtue  of  the  Ottoman 


358         NATIONALITY  AND  PROTECTION  OF  VESSELS 

law  of  August,  1863,  implicitly  accepted  by  powers  having  capitu- 
lations, as  well  as  in  virtue  of  the  treaty  between  France  and 
Morocco  in  1863,  to  which  treaty  many  powers  have  acceded. 
By  analogy  these  modifications  extended  to  other  Oriental 
countries,  save  that,  while  in  Turkey  the  status  of  proteg6  might 
be  inherited,  this  did  not  obtain  in  Muscat,  where  religious  con- 
ditions were  different.  The  term  protege,  therefore,  according  to 
the  tribunal,  now  embraced  the  following  classes  only:  (i)  per- 
sons subjects  of  a  country  under  the  protectorate  of  the  power 
whose  protection  they  claim;  (2)  persons  corresponding  to  the 
enumerated  classes  in  the  Moroccan  treaties  and  the  Ottoman 
law  of  1863;  (3)  persons  recognized  as  proteges  by  special  treaty, 
as  that  in  1844  with  Muscat,  and  (4)  persons  who  had  the  quality 
of  proteg6s  before  1863  and  who  had  not  lost  it  subsequently. 

In  accordance  with  this  reasoning,  the  tribunal  decided  the 
first  question  as  follows: 

"i.  Before  January  2,  1892,  France  had  the  right  to  authorize 
vessels  belonging  to  subjects  of  His  Highness  the  Sultan 
of  Muscat  to  fly  the  French  flag,  subject  only  to  her  own 
laws  and  administrative  regulations. 

"2.  Owners  of  dhows  who,  before  1892,  had  been  authorized  by 
France  to  fly  the  French  flag,  retain  this  authorization  as 
long  as  France  continues  it  to  the  grantee. 

"3.  After  January  2,  1892,  France  had  no  right  to  authorize 
vessels  belonging  to  the  subjects  of  His  Highness  the  Sul- 
tan of  Muscat  to  fly  the  French  flag  unless  their  owners 
or  fitters-out  had  proved  or  should  prove  that  they  had 
been  regarded  and  treated  by  France  as  her  proteges  before 
the  year  1863." 

As  regards  the  second  question  before  it  —  the  nature  and 
the  extent  of  the  immunities  of  Omani  proteges  of  France  when 
within  the  dominions  of  the  Sultan  of  Muscat  —  the  tribunal 
considered  that  the  owners,  captains,  and  crews  of  dhows  author- 
ized to  fly  the  French  flag,  if  natives  of  Oman,  did  not  come 
within  the  purview  of  article  4  of  the  Treaty  of  1844  which  with- 
drew natives  of  Oman  in  the  service  of  Frenchmen  from  the 
jurisdiction  of  the  Sultan.  Any  such  attempt  to  derogate  from  the 


THE  CASE  OF  FRANCIS  BOYLE  359 

sovereignty  of  the  Sultan  would  be  in  contravention  of  the  Declara- 
tion of  1862.    Hence  the  decision  on  the  second  point: 

"i.  Dhows  of  Muscat  that  have  been  authorized,  as  indicated 
above,  to  fly  the  French  flag,  are  entitled  in  the  territorial 
waters  of  Muscat  to  the  inviolability  provided  by  the 
Franco-Muscat  Treaty  of  November  17,  1844. 

"2.  The  authorization  to  fly  the  French  flag  cannot  be  trans- 
mitted or  transferred  to  any  other  person  or  dhow,  even 
though  the  latter  belong  to  the  same  owner. 

"3.  Subjects  of  the  Sultan  of  Muscat  that  are  owners  or  cap- 
tains of  dhows  authorized  to  fly  the  French  flag  or  that 
are  members  of  the  crews  of  such  dhows  or  belong  to  their 
families,  do  not,  in  consequence  of  this  fact,  enjoy  any 
right  of  extraterritoriality  exempting  them  from  the  sover- 
eignty, especially  from  the  jurisdiction,  of  His  Highness 
the  Sultan  of  Muscat." 

(Recueil  des  Actes  et  Protocoks,  published  by  the  International 
Bureau  at  The  Hague;  Archives  Diplomatiques,  vol.  xcrv,  pp.  554- 
58;  vol.  xcvn,  pp.  111-28;  407-29;  vol.  c,  233-377;  British  and 
Foreign  State  Papers,  vol.  xcvm,  pp.  46-48;  113-18;  G.  G.  Wil- 
son: The  Hague  Arbitration  Cases.) 


THE  CASE  OF  FRANCIS  BOYLE  (1853) 

MR.  MARCY,  Secretary  of  State  for  the  United  States,  on  Sep- 
tember i,  1853,  wrote  to  the  American  Consul  at  Hamburg: 

"A  copy  of  your  dispatch  in  relation  to  the  sailor  Francis  Boyle, 
under  date  of  August  5th,  addressed  to  the  Hon.  D.  D.  Bernard, 
late  minister  plenipotentiary  and  envoy  extraordinary,  has  been 
transmitted  by  him  to  this  Department. 

"It  appears,  so  far  as  the  facts  have  been  presented  to  the  De- 
partment, that  Francis  Boyle,  the  sailor  above  mentioned,  be- 
longed to  the  crew  of  the  ship  Talleyrand,  an  American  vessel, 
commanded  by  Captain  Young,  lying  on  the  2d  of  August  hi  the 
port  of  the  free  city  of  Hamburg;  that,  on  this  day,  the  Hamburg 


360         NATIONALITY  AND  PROTECTION  OF  VESSELS 

police  went  on  board  the  said  vessel,  during  the  absence  of  the 
captain,  and,  under  pretense  of  his  having  been  concerned  in  a 
riot  on  shore,  arrested  Francis  Boyle,  who  held  at  the  time  a  pro- 
tection as  a  citizen  of  the  United  States,  and  who  was  so  desig- 
nated on  the  crew  list;  that  the  cause  assigned  for  the  arrest  was 
merely  a  pretense,  since,  in  point  of  fact,  it  was  done  at  the  instiga- 
tion of  the  Prussian  authorities  of  Stettin  who  forwarded  a  requi- 
sition for  the  sailor,  as  being  a  Prussian  by  birth,  and  as  such 
liable  to  military  service;  that  it  was  alleged  by  the  Prussian  Min- 
ister, and  the  chief  of  the  police  at  Hamburg,  that  his  "protection" 
could  not  shield  him,  as  it  was  assumed  by  them  that  the  said 
Boyle,  not  having  been  five  years  in  the  United  States,  could  not 
be  a  citizen  thereof;  and,  finally,  that  the  chief  of  police,  after 
declaring  that  he  must  surrender  the  man  to  the  Prussian  authori- 
ties, having  been  deterred  from  so  doing  by  the  energetic  remon- 
strances of  yourself  and  of  Captain  Young,  referred  the  matter 
to  the  syndicus,  in  charge  of  foreign  affairs,  by  whom  the  sailor, 
after  a  detention  of  three  days,  was  liberated  and  sent  back  on 
board  his  vessel. 

"  These  facts,  as  they  are  thus  presented,  exhibit  a  case  of  so 
gross  a  violation  of  the  rights  of  an  American  sailor,  that  I  deem 
it  unnecessary  at  this  time  to  do  more  than  to  assure  you  that 
your  active  exertions  to  prevent  the  consummation  of  a  high- 
handed outrage  deserve  and  have  received  the  strong  approbation 
of  the  President. 

"It  is  for  the  authorities  of  the  so-called  'Republic  and  Free 
Hanseatic  City  of  Hamburg'  to  determine  how  it  may  affect  the 
commerce  of  that  flourishing  state,  to  permit  their  police  officers 
to  become  the  instruments  of  foreign  nations  in  acts  of  violence 
and  oppression,  and  upholding  them  in  their  entry,  under  a  false 
pretext,  on  board  of  an  American  vessel,  lying  peacefully  at  their 
wharves  engaged  in  commercial  transactions  under  the  sanction 
of  solemn  treaty  stipulations,  and  arrest  one  of  its  crew,  shipped 
as  an  American  sailor,  holding  an  American  protection  and  rely- 
ing upon  it,  and  upon  the  flag,  which  floated  over  him,  as  his  safe- 
guards from  all  illegal  acts. 

"It  is  for  the  Government  of  the  United  States  to  determine 
what  steps  it  will  take  to  vindicate  its  sovereignty,  violated  in  the 


THE  CASE  OF  THE  MASONIC  361 

person  of  one  under  its  protection,  and  to  make  known  its  deter- 
mination to  protect  those  who  place  themselves  under  the  banner 
of  the  Republic. 

"I  do  not  deem  it  necessary  at  the  present  time  to  enter  into 
any  argument  as  to  the  question  whether  Francis  Boyle  was  or 
was  not  a  native-born  citizen  of  the  United  States,  whether  he 
had  been  naturalized  or  had  not  resided  five  years  in  the  United 
States,  as  contended  by  the  Prussian  authorities.  The  principles 
heretofore  laid  down,  and  acted  upon  by  this  government,  in  re- 
gard to  the  citizenship  of  seamen  are  plain  and  well  settled  and 
require  no  elaborate  vindication.  The  various  questions  which 
have  arisen  in  respect  to  the  protection  to  be  extended  to  those 
who  have  taken  the  incipient  steps  to  become  American  citizens, 
do  not  apply  to  them. 

"The  rule  laid  down  by  the  distinguished  person  who  first  held 
the  office  of  Secretary  of  State,  Mr.  Jefferson,  was,  'that  the  vessel 
being  American  shall  be  evidence  that  the  seamen  on  board  are 
such,'  and  fifty  years  afterwards  it  was  restated,  with  no  less  pre- 
cision by  one  of  the  most  eminent  of  American  statesmen,  one  of 
my  predecessors,  that  'in  every  regularly  documented  merchant 
vessel  the  crew  who  navigate  it  will  find  their  protection  in  the 
flag  which  is  over  them.' 

"This  is  the  principle  which  will  hereafter,  certainly  not  less 
than  heretofore,  be  maintained,  in  its  fullest  extent,  by  the  Gov- 
ernment of  the  United  States." 

(Moore:  Digest  of  International  Law,  vol.  n,  pp.  274-75.) 


THE  CASE  OF  THE  MASONIC  (1879) 

ON  May  16,  1878,  the  American  bark  Masonic,  Nichols,  master, 
sailed  from  New  York  for  Nagasaki,  Japan,  with  a  cargo  of 
16,500  cases  of  petroleum.  On  the  5th  of  the  following  November 
she  put  into  Manila,  in  the  Philippine  Islands,  in  distress;  but  on 
the  1 2th  of  December,  her  sails  and  rigging  having  been  repaired, 
she  sailed  for  her  destination.  She  again  encountered  heavy  seas 
and  was  obliged  to  put  back  to  Manila,  where  she  arrived  Janu- 
ary 12,  1879;  and  as  she  was  too  badly  damaged  to  continue  on 


362         NATIONALITY  AND  PROTECTION  OF  VESSELS 

her  voyage,  permission  was  obtained  from  the  customs  authori- 
ties to  transfer  her  cargo  to  the  British  schooner  Mt.  Lebanon,  for 
Nagasaki.  The  transfer  was  made  while  the  vessels  were  an- 
chored at  a  considerable  distance  from  the  shore  and  in  rough 
water.  The  local  officials  who  were  put  on  board  to  supervise  the 
transfer  claimed  that  the  cargo  turned  out  to  be  22  cases  short  of 
the  16,500  packages  specified  in  the  manifest,  and  for  this  de- 
ficiency a  fine  of  $100  a  case,  amounting  to  $2,200,  was  imposed 
on  the  captain  and  denounced  against  the  vessel.  Having  no  funds, 
and  deeming  the  fine  to  be  wrongful,  the  captain  made  a  protest 
to  the  chief  officer  of  the  customs.  He  was  informed,  in  reply,  that 
his  protest  could  not  be  received  till  his  fine  was  paid.  The  vessel 
was  then  seized  and  held  in  custody  by  five  customs  officers,  though 
the  American  flag  was  kept  flying  at  her  mizzenmast.  In  course 
of  time  orders  were  received  from  her  owners  in  New  York  to  sell 
her,  and  the  United  States  Vice-Consul  informed  the  customs 
authorities  that  the  bark  would  be  sold  at  auction,  at  the  same 
time  handing  them  an  inventory  of  everything  on  board.  At  first 
the  customs  authorities  claimed  a  prior  right  to  sell  the  vessel,  but 
they  subsequently  informed  the  vice-consul  that  they  would 
permit  him  to  make  the  sale,  holding  him  responsible  for  the 
proceeds.  The  vice-consul  declined  to  assume  any  responsibility 
to  the  Manila  officials,  and  on  February  24  postponed  the  sale 
indefinitely,  at  the  same  time  protesting  to  the  governor-general 
against  the  whole  proceeding.  The  authorities  then  sold  the 
vessel  themselves.  On  the  unloading  of  the  Mt.  Lebanon  at  Naga- 
saki it  was  found  that  the  Manila  authorities  had  in  reality  made 
a  mistake,  and  that  there  was  no  shortage  in  the  number  of 
cases. 

When  the  Department  of  State  was  informed  of  these  facts,  it 
laid  them  before  the  Spanish  Minister  at  Washington  with  a  view 
to  effect  a  prompt  adjustment  of  the  case.  The  minister,  after 
reading  the  papers,  replied  that  the  certificate  made  at  Nagasaki 
of  the  unloading  of  the  Mt.  Lebanon  merely  stated  that  there  had 
been  discharged  from  her  16,500  cases,  and  that  it  was  to  be  sup- 
posed that  the  cases  missing  at  Manila  had  been  added  after  the 
transshipment  of  the  Masonic's  cargo  at  that  port.  There  was  no 
evidence,  however,  that  the  Mt.  Lebanon  had  touched  at  any  port 


THE  CASE  OF  THE  MASONIC  363 

between  Manila  and  Nagasaki;  and  under  the  circumstances  the 
Department  of  State  instructed  the  Minister  of  the  United  States 
at  Madrid  at  once  to  bring  the  case  to  the  attention  of  the  Spanish 
Government,  and  to  express  an  earnest  desire  for  its  early  consid- 
eration and  settlement.  Soon  afterward  he  was  informed  that  the 
United  States  consular  officer  at  Manila  had  been  directed  to  pro- 
test against  all  the  proceedings;  and  he  was  instructed  to  impress 
upon  the  Spanish  Government  not  only  the  groundlessness  of  the 
particular  prosecution,  but  also  the  principle  "that  vessels  driven 
by  stress  of  weather  to  seek  refuge  in  Spanish  harbors  .  .  .  should 
be  exempted  from  the  operation  of  the  Spanish  customs  law  except 
in  so  far  as  it  is  strictly  necessary  for  the  prevention  of  smuggling 
and  the  enforcement  of  sanitary  regulations." 

To  the  representations  of  the  United  States,  the  Spanish  Gov- 
ernment replied  that,  the  governor  of  the  Philippines  having  deter- 
mined the  case  to  be  a  proper  one  for  legal  proceedings,  an  inves- 
tigation had  been  instituted  by  royal  order  before  the  Council  of 
Administration,  and  was  then  pending,  and  that  the  continued 
delay  in  the  disposition  of  the  case  was  due  to  the  refusal  of  the 
representatives  of  the  Masonic  to  file  a  bond  with  sureties  for  the 
payment  of  any  expenses  which  might  be  incurred  by  the  board 
of  examination.  The  United  States  protested  against  the  require- 
ment of  such  a  bond  under  the  circumstances;  and  asked,  besides, 
that  the  judicial  proceedings  in  the  Philippines  be  discontinued, 
and  that  the  case  be  disposed  of  by  the  authorities  at  Madrid. 
The  Spanish  Government,  while  waiving  the  execution  of  the 
bond,  on  legal  grounds  declined  to  order  the  discontinuance  of  the 
judicial  proceedings,  but  directed  the  Manila  authorities  to  hasten 
their  conclusion.  The  Government  of  the  United  States  expressed 
appreciation  of  this  action,  but  instructed  its  minister  at  Madrid 
to  say  that  an  adverse  decision  by  the  authorities  at  Manila, 
after  the  incontrovertible  evidence  of  innocence  which  had  been 
produced  by  the  United  States,  "would  be  regarded  as  so  far  a 
denial  of  justice  to  an  American  citizen  as  to  require  us  to  present 
an  ultimate  appeal  in  the  premises  directly  to  the  supreme  gov- 
ernment at  Madrid,  claiming  to  be  heard  thereon,  without  preju- 
dice, however,  to  such  rights  as  the  owner  of  the  Masonic  may  have 
before  the  Consejo  de  Estada"  (Council  of  State). 


364         NATIONALITY  AND  PROTECTION  OF  VESSELS 

As  a  result  of  the  administrative  and  judicial  proceedings  at 
Manila  the  decree  was  revoked  by  order  of  the  court,  which 
ordered  restitution  of  the  fine,  and  directed  an  indemnity  to  be 
paid  to  Captain  Nichols  for  any  loss  and  damage  which  he  might 
prove  that  he  had  suffered. 

On  September  25,  1883,  Mr.  Frelinghuysen  enclosed  a  copy  of 
this  sentence  to  Mr.  John  W.  Foster,  then  Minister  of  the  United 
States  at  Madrid,  with  an  expression  of  the  hope  that  in  view  of 
the  completion  of  the  judicial  proceedings  at  Manila  the  case 
would  be  speedily  adjusted.  The  matter  was  duly  presented  to 
the  Spanish  Government,  but  the  authorities  in  the  Philippines 
had  sought  to  obtain  a  review  of  the  sentence  at  Madrid,  and  the 
diplomatic  consideration  of  the  case  was  again  delayed.  On  the 
i  gth  of  September,  1884,  however,  Mr.  Foster  informed  Mr. 
Elduayen,  then  Spanish  Minister  of  State,  that  he  had  been  in- 
structed to  insist  that  the  position  originally  assumed  by  his  gov- 
ernment might  be  accepted,  and  that  steps  might  at  once  be  taken 
to  adjust  the  claim  diplomatically,  and  he  adverted  to  the  fact 
that  the  case  had  been  twice  presented  by  the  President  to  Con- 
gress. On  the  1 6th  of  October  the  Council  of  State,  having  com- 
pleted the  examination  of  the  case,  rendered  a  definitive  decision 
in  favor  of  the  vessel.  Mr.  Elduayen  thought  that  this  should  be 
accepted  as  a  sufficient  protection  of  the  rights  of  the  American 
claimants.  They  had,  he  said,  been  charged  with  violating  the 
laws  of  Spain,  to  which  they  became  subject  on  touching  Spanish 
territory;  the  proceedings  had  followed  the  regular  legal  course, 
except  that  as  a  special  favor  to  the  United  States  the  complain- 
ant was  dispensed  from  giving  bonds,  and  the  case  bore  from  the 
beginning  to  the  end  no  indication  of  outrage. 

Mr.  Foster  replied  that  he  could  neither  concur  in  nor  accept 
these  conclusions,  but  that  instead  of  attempting  an  argumenta- 
tive answer  to  them  he  would  submit  a  suggestion  in  the  interest 
both  of  justice  and  of  harmony.  The  United  States  had  awaited 
for  nearly  six  years  the  result  of  the  judicial  proceedings,  in 
which  it  had  finally  been  decided  that  the  authorities  of  the 
Philippines  had  acted  without  law  or  justice.  It  would  add  another 
wrong  to  the  original  injustice  if  the  American  citizen  whose 
property  had  been  seized  and  confiscated  should  be  required  to  go 


THE  CASE  OF  THE  MASONIC  365 

to  Manila  and  follow  up  the  judgment  by  seeking  to  recover  from 
those  authorities  the  losses  and  injuries  sustained  by  him.  His 
means  had  been  taken  from  him.  Mr.  Foster  therefore  suggested 
that  as  the  decisions  of  the  Spanish  courts  had  established  the 
injustice  which  had  been  done,  the  mode  of  settlement  originally 
suggested  by  the  United  States  should  be  adopted.  Responding 
to  this  suggestion,  Mr.  Elduayen  obtained  from  the  Minister  of  Ul- 
tramar authority  to  settle  the  case  in  accordance  with  the  deci- 
sion of  the  Council  of  State,  leaving  the  amount  of  damages  to  be 
determined  by  an  arbitrator  named  by  common  accord.  Mr. 
Elduayen  proposed  that  six  months  should  be  allowed  for  the 
rendering  of  a  decision,  and  that  the  amount  awarded  should  be 
paid  at  Washington  within  six  months,  with  interest  at  six  per 
cent  from  the  day  of  the  decision  to  the  day  of  payment.  The 
United  States  accepted  this  proposition,  with  the  qualification 
that  the  award  should  be  payable  in  American  gold.  This  qualifi- 
cation was,  however,  subsequently  waived,  it  being  left  to  the 
arbitrator  to  determine  in  what  money  the  award  should  be  paid. 

For  the  post  of  arbitrator  Mr.  Elduayen  proposed  Baron  Blanc, 
then  Italian  Minister  at  Madrid,  who  had  at  one  time  served  as 
umpire  in  the  then  recent  Spanish  Claims  Commission  at  Wash- 
ington. This  proposal  the  United  States  promptly  accepted;  and 
on  the  28th  of  February,  1885,  the  Spanish  Minister  of  State  and 
the  Charg6  d' Affaires  ad  interim  of  the  United  States  addressed 
to  Baron  Blanc  a  note  inviting  him  to  act  as  arbitrator.  Baron 
Blanc,  having  received  the  permission  of  his  government,  ac- 
cepted the  nomination  and  on  June  27  rendered  the  following 
award: 

"The  undersigned,  requested  by  a  collective  note  of  His  Ex- 
cellency the  Minister  of  State  of  His  Majesty  the  King  of  Spain 
and  of  the  Charg6  d'Affaires  of  the  United  States  at  Madrid, 
dated  28th  February  ultimo,  in  the  name  of  the  respective  gov- 
ernments, to  decide  in  justice  and  equity,  as  arbiter,  within  a 
period  not  exceeding  six  months,  the  amount  of  the  pecuniary 
indemnity  to  be  paid  by  the  Spanish  Treasury  to  the  owner  of  the 
North  American  vessel  Masonic  in  virtue  of  the  decreed  sentence 
of  the  Council  of  State  of  Spain  of  October  16, 1884,  and  in  accord- 
ance with  the  damages  and  injuries  duly  proved  by  the  claimant, 


366         NATIONALITY  AND  PROTECTION  OF  VESSELS 

has  received  from  the  high  parties  to  form  his  decision  the  follow- 
ing documents:  .  .  ." 

[After  enumerating  the  documents  and  discussing  the  cause  of 
the  disagreement  between  the  two  governments  in  regard  to  the 
amount  of  the  indemnity,  the  arbitrator  concluded:] 

"The  undersigned,  to  discharge  in  its  entire  integrity  the  com- 
mission with  which  both  governments  have  honored  him,  had 
therefore  to  solve  these  differences  of  estimate  by  basing  his  de- 
cision upon  the  documents  produced  by  both  parties  as  proofs. 

"The  undersigned,  having  enlightened  his  conscience  in  the 
best  possible  way  by  the  scrupulous  verification  of  the  proofs 
submitted  in  the  arbitration,  in  virtue  of  the  powers  which  have 
been  conferred  upon  him  by  both  governments,  declares  in  jus- 
tice and  equity  that  in  conformity  with  the  letter  and  spirit  of 
the  decreed  sentence  of  the  Council  of  State  of  Spain  of  16  Octo- 
ber, 1884,  according  to  his  personal  knowledge  and  estimation,  the 
sum  to  be  paid  as  an  indemnity  by  the  Spanish  Treasury  to  the 
owner  of  the  Masonic,  both  as  capital  and  interest  up  to  the  date 
of  the  present  decision,  is  $51,674.07." 

The  grounds  of  his  decision  were  set  forth  by  Baron  Blanc  in  a 
memoir  which  he  sent  to  his  own  government.  He  afterward  gave 
a  copy  of  the  paper  to  Mr.  Foster,  with  permission  to  communi- 
cate it  to  the  Government  of  the  United  States.  The  paper  may 
be  summarized  as  follows: 

The  arbitrator  found  that  the  value  of  the  Masonic  had  been 
estimated  at  $23,000  to  $25,000  at  her  departure  from  New  York. 
Value  of  The  cost  of  the  necessary  repairs  had  been  estimated 
the  vessel  by  the  snip's  officers  at  $3,000  and  by  the  official  at 
Manila  at  $20,000. 

The  claimant  in  the  account,  presented  without  proofs  and  by 
way  of  amiable  compromise,  had  asked  $14,500.  The  value  as 
estimated  by  the  Spanish  Minister  of  State  was  $6,000. 

The  arbitrator  considered  the  claimant  bound  by  his  claim  for 
$14,500.  Consequently  an  appraisement  exceeding  that  amount 
could  not  be  made  against  the  Spanish  Government.  The  value 
of  the  vessel  was  accordingly  limited  to  and  fixed  at  $14,500. 

Stating  that  the  Spanish  Government  "recognized  in  principle 
the  admissibility  of  proofs  of  ordinary  and  reasonable  earnings  of 


THE  CASE  OF  THE  MASONIC  367 

a  vessel  in  good  condition  and  ready  to  go  to  sea/'  the  arbitrator 
admitted  the  "annual  payment  of  $5,000  as  net  earnings  lost  from 
the  7th  of  May,  1879,  that  is  to  say,  two  months  after  Value  of  the 

.  f.  ,     ,      ,       ,  .,      £  ,,  earnings  of  the 

the  seizure,  which  took  place  on  the  yth  of  March,  a  «  Masonic  " 
time  deemed  necessary  for  the  repairs  to  be  made  at  Hong-Kong 
up  to  the  date  of  the  arbitral  decision." 

In  regard  to  the  allowance  of  interest,  the  arbitrator,  "in  con- 
formity with  the  sense  of  high  equity  of  the  declarations  of  His 
Excellency  the  Minister  of  State,  inasmuch  as  he  [the  Allowance  of 
latter]  admits  in  principle  the  6  per  cent  interest  from  "tf*™8* 
the  yth  March,  1879,  on  the  cash  capital  which  in  equity  and 
justice  may  bear  interest,  and  inasmuch  as  in  the  offer  of  total 
indemnity  made  by  the  note  of  3oth  May  he  includes  the  interest 
on  the  total  capital  which  he  found  then  proved, "  adjudged  "the 
interest  asked  on  the  net  earnings  capitalized  at  the  end  of  each 
year  from  the  7th  May,"  and  therefore  did  "not  adjudge  the 
supplementary  interest  for  the  value  of  the  ship." 

The  arbitrator  also  made  allowances  for  telegrams,  stamped 
paper,  payments  to  the  officers  of  the  vessel,  consular  fees,  and 
lawyers'  fees,  with  interest  at  six  per  cent  where  it  t 

f  Other  items 

had  been  asked. 

In  regard  to  the  item  of  traveling  expenses  between  New  York 
and  Washington,  Baron  Blanc  said:  "In  spite  of  the  likelihood 
and  moderation  of  the  amount  of  $360  asked,  of  the  Proof  of 
difficulty  of  the  proofs  for  such  expenses,  and  of  the  «Penses 
assurance  given  by  the  Government  of  the  United  States  as  to 
the  honesty  of  the  claimant,  the  undersigned  does  not  think  that 
he  can  deviate  from  the  principle  not  to  admit  what  is  not  proved 
by  formal  documents.    For  this  item,  as  it  is  not  admitted  by  the 
Spanish   Government,  the  undersigned  does  not  adjudge  any 
reimbursement." 

July  20,  1885,  Mr.  Elduayen  formally  notified  Mr.  Foster  that 
the  Spanish  Government,  considering  the  decision  of  the  arbitrator 
as  binding  and  without  appeal,  would  take  the  necessary  measures 
to  pay  the  sum  awarded  in  the  manner  agreed  upon.  The  money 
was  duly  paid.  It  was  distributed  by  the  Department  of  State. 

(Extracted  and  condensed  from  Moore:  International  Arbi- 
trations, vol.  n,  pp.  1055-69.) 


368  PROTECTION  ON  THE  HIGH  SEAS 


§40.  PROTECTION  OF  PROPERTY  AND  PERSON  OF  NA- 
TIONALS ON  THE  HIGH  SEAS,  AND  ELSEWHERE  OUT- 
SIDE THE  FRONTIERS  OF  ANY  STATE 


IMPRESSMENT  OF  SEAMEN 

IT  is  constantly  stated  that  the  United  States  maintained  the 
right  of  expatriation  in  its  controversies  with  Great  Britain  con- 
cerning the  impressment  of  seamen.  This  is  true,  but  only  in  a 
very  limited  sense.  Taking  the  dispute  over  impressment  as  a 
whole,  it  did  not  involve  the  crucial  point  of  the  later  contro- 
versies as  to  expatriation.  The  burden  of  the  complaint  in  regard 
to  impressment,  as  denned  in  Madison's  war  message  of  June  i, 
1812,  was  that  Great  Britain  sought,  under  cover  of  belligerent 
right,  to  execute  her  municipal  law  of  allegiance  on  board  the 
ships  of  other  countries  on  the  high  seas,  where  no  laws  could 
operate  "but  the  law  of  nations,  and  the  laws  of  the  country  to 
which  the  vessels  belong."  Precisely  the  same  position  was  main- 
tained by  Webster  in  his  correspondence  with  Lord  Ashburton 
in  1842.  Ships  on  the  high  seas  are  treated,  for  purposes  of  juris- 
diction, as  if  they  were  part  of  the  territory  of  the  nation  to  which 
they  belong.  The  complaint  that  the  British  Government  en- 
forced the  English  law  of  allegiance  on  board  American  vessels 
on  the  high  seas  was  manifestly  a  different  thing  from  objecting 
to  her  enforcement  of  the  same  law  within  British  jurisdiction. 

(Extract  from  Moore:  American  Diplomacy  [New  York,  1905], 
PP-  173-740 


THE  CASE  OF  THE  VIRGINIUS  (1873) 

THE  Virginiuswas  a  merchant  ship  presumably  entitled  to  fly  the 
American  flag  because  of  her  registry  in  the  custom  house  at  New 
York  as  the  property  of  a  citizen  of  the  United  States.  For  some 
years  she  had  been  engaged  in  the  service  of  the  Cuban  insurgents 
and  as  such  had  become  an  object  of  suspicion  to  the  Spanish  au- 
thorities. In  October,  1873,  she  left  Kingston,  Jamaica,  ostensibly 


THE  CASE  OF  THE  VIRGINIUS  369 

for  Costa  Rica,  but  in  reality  with  men  and  arms  for  Cuba.  While 
on  the  high  seas,  she  was  pursued  and  captured  by  the  Spanish 
man-of-war  Tornado  and  taken  to  Santiago  de  Cuba,  where 
fifty-three  of  her  passengers  and  crew  were  summarily  put  to 
death  on  the  charge  of  piracy.  Of  those  executed,  nineteen  were 
of  British  and  six  of  American  nationality.  Further  executions 
were  prevented  by  the  arrival  of  a  British  warship  at  Santiago, 
followed  a  few  days  later  by  the  U.S.S.  Wyoming,  whose  com- 
mander, Gushing,  by  his  vigorous  protest,  backed  up  by  a  threat 
of  force,  had  a  restraining  effect  upon  the  governor,  General 
Burriel. 

The  Government  of  the  United  States  made  immediate  demand 
for  complete  reparation,  and  on  November  29  an  agreement  was 
arrived  at  between  the  Secretary  of  State  and  the  Spanish  Min- 
ister at  Washington,  whereby  Spain  stipulated  to  restore  the 
Virginius  and  the  survivors  of  her  passengers  and  crew,  and  to 
salute  the  flag  of  the  United  States  on  the  25th  of  December 
unless  "before  that  time  Spain  should  prove  to  the  satisfaction 
of  the  Government  of  the  United  States  that  the  Virginius  was 
not  entitled  to  carry  the  flag  of  the  United  States,  and  was  carry- 
ing it  at  the  time  of  her  capture  without  right  and  improperly," 
in  which  case  the  salute  was  to  be  dispensed  with,  "as  not  being 
necessarily  requirable." 

On  examination  instituted  by  the  Attorney-General  of  the 
United  States,  it  was  found  that  the  Virginius  had  been  fraudu- 
lently registered  and  in  fact  belonged  to  residents  of  Cuba,  and 
hence  was  not  entitled  to  fly  the  American  flag.  In  the  opinion 
of  the  Attorney-General,  however,  this  did  not  justify  the  capture. 
"She  was  as  much  exempt,"  he  said,  "from  interference  on  the 
high  seas  by  another  power  ...  as  though  she  had  been  lawfully 
registered.  .  .  .  Spain  may  defend  her  territory  and  people  from 
the  hostile  attack  of  what  is,  or  appears  to  be,  an  American  ves- 
sel, but  she  has  no  jurisdiction  whatever  over  the  question  as  to 
whether  or  not  such  vessel  is  on  the  high  seas  in  violation  of  any 
law  of  the  United  States." 

Having  proved  the  registry  to  be  false,  Spain  was  not  required 
to  salute  the  flag,  it  being  considered  sufficient  that  she  make  dec- 
laration that  no  indignity  to  the  American  flag  had  been  intended. 


370  PROTECTION  ON  THE  HIGH  SEAS 

The  Virginius  was  delivered  to  the  United  States  at  Bahia  Honda 
in  Cuba,  but  on  the  passage  north  she  foundered  off  Cape  Fear. 
Those  of  the  passengers  and  crew  that  escaped  execution  were 
also  handed  over  to  the  American  authorities.  Later,  Spain  paid 
$80,000  to  the  United  States  in  settlement  of  all  claims  arising 
out  of  the  affair,  in  addition  to  indemnities  paid  to  Great  Britain 
on  account  of  the  British  subjects  executed. 

The  case  of  the  Virginius  has  been  much  discussed  by  writers 
on  international  law  because  of  the  fundamental  principles  in- 
volved. The  Spanish  authorities  justified  the  seizure  and  whole- 
sale executions  on  the  ground  of  piracy;  but,  although  engaged  in  a 
filibustering  expedition,  the  Virginius  was  guilty  of  no  act  of 
piracy  under  the  law  of  nations,  however  illegal  the  voyage  may 
have  been  under  Spanish  or  American  law.  Her  crew  had  not  the 
animus  furandi  (intention  to  depredate),  nor  had  they  put  them- 
selves outside  the  pale  of  lawful  authority.  Hence,  as  Hall,  in 
his  discussion  of  the  case,  has  said,  "although  the  Spanish  au- 
thorities had  ample  reason  for  watching  her,  for  seizing  her  if  she 
entered  the  Cuban  territorial  waters,  and  possibly  even  for  pre- 
cautionary seizure  upon  the  high  seas,  no  excuse  existed  for  re- 
garding the  vessel  and  crew  as  piratical  at  the  moment  of  capture." 

Piracy  aside,  the  question  arises:  Had  Spain  the  right  to  seize 
the  Virginius  on  the  high  seas  in  time  of  peace?  This  involves  the 
vital  right  of  self-defense  and,  corollary  to  it,  the  right  of  visit  and 
search.  It  is  conceded  that  a  state  may  exercise  the  right  of  self- 
preservation  in  the  case  of  an  attack  upon  its  territory,  but  some- 
times the  danger  that  threatens  is  less  overt,  though  more  insidi- 
ous and  fully  as  imminent,  and  in  the  face  of  such  a  danger,  "to 
seek  out  and  destroy  the  enemy "  may  be  the  most  patent  means 
of  defense.  If  a  state  possesses  the  right  of  self-preservation,  it 
must  possess  it  in  time  of  peace  as  well  as  of  war,  and  "there  is  no 
greater  inconvenience  to  be  suffered  by  admitting  that  this  right 
may  be  exercised  on  the  ocean,  than  is  constantly  suffered  by 
neutrals  from  an  exercise  of  the  belligerent  rights  of  nations  at 
war."  l  And  to  be  effective  this  right  would  seem  to  imply  "de- 
fense which  prevents  as  well  as  that  which  repels  attack." 

As  to  the  contention  of  the  Attorney-General  that  the  flag  which 

1  G.  T.  Curtis,  cited  in  Woolsey:  Ittternational  Law  [6th  ed.],  p.  369. 


THE  CASE  OF  THE  COSTA  RICA  PACKET  371 

she  flew  and  the  papers  which  she  carried  should  have  exempted 
the  Virginius  from  any  interference  upon  the  high  seas,  it  may  be 
argued  that  such  a  line  of  reasoning  would  serve  the  purpose  of 
false  papers  very  well.  If  a  vessel  come  under  suspicion  of  being 
improperly  documented,  it  may  happen  that  the  only  way  to 
ascertain  the  fact,  in  a  situation  requiring  prompt  action,  would 
be  by  visit  and  search  on  the  high  seas  even  in  time  of  peace.  To 
this  effect  are  the  opinions  of  Woolsey  and  Hall,  both  of  whom 
have  discussed  the  case  of  the  Virginius.  Dana,  perhaps,  has  gone 
more  directly  to  the  central  fact  when  he  points  out  that  the  Vir- 
ginius was  really  owned  by  Spanish  subjects,  which  fact  put  her 
under  Spanish  jurisdiction,  for  jurisdiction  depends  on  owner- 
ship, not  on  a  certificate  of  registry.  As  for  the  registry  of  the 
ship,  "nations,"  he  says,  "having  cause  to  arrest  a  vessel  would  go 
behind  such  a  document  to  ascertain  the  jurisdictional  fact  which 
gives  character  to  the  document,  and  not  the  document  to  the 
fact."1 

But  whatever  justification  Spain  may  have  had  for  seizing  the 
Virginius  on  the  plea  of  self-preservation,  no  excuse  could  be 
offered  in  palliation  of  the  summary  executions,  and  it  was  on 
account  of  these  that  Spain  made  reparation  to  the  United  States 
and  Great  Britain. 

(Foreign  Relations  of  the  United  States,  1874,  pp.  922-1117; 
1875,  pp.  1144-1256;  British  and  Foreign  State  Papers,  vol. 
LXV,  pp.  98-229;  Moore:  Digest  of  International  Law,  vol.  n,  pp. 
»  967,  980-83.) 


THE  CASE  OF  THE  COSTA  RICA  PACKET  (1888) 

JANUARY  24,  1888,  an  Australian  whaling  ship,  the  Costa  Rka 
Packet,  sighted  at  sea  a  water-logged  derelict  prauw  (native 
Malayan  boat)  of  about  a  ton  burden.  Two  boats  were  put  off, 
which,  finding  goods  on  board  the  prauw,  towed  it  alongside  the 
ship,  where  there  were  transferred  to  her  deck  from  the  prauw  ten 
cases  of  gin,  three  cases  of  brandy,  and  a  can  of  kerosene,  the 

1  Dana,  cited  in  Moore:  Digest  of  International  Law,  vol.  n,  pp.  081-82. 


372  PROTECTION  ON  THE  HIGH  SEAS 

brandy  and  gin  being  more  or  less  damaged  by  sea  water.  The 
prauw  and  its  contents  belonged  to  some  natives  of  the  Dutch 
East  Indies;  and  three  years  afterwards,  the  Costa  Rica  Packet 
being  then  in  the  port  of  Ternate,  Dutch  East  Indies,  the  master 
was  arrested  on  a  charge  of  theft,  in  having  seized  the  prauw  and 
maliciously  appropriated  the  goods  on  it.  A  claim  was  made 
against  the  Dutch  Government  for  his  arrest  and  imprisonment, 
on  the  ground  that  the  act  complained  of  took  place  on  the  high 
seas  outside  Dutch  jurisdiction.  The  warrant  of  arrest  alleged  that 
it  took  place  not  more  than  three  miles  from  land,  but  the  evidence 
showed  that  it  was  at  least  fifteen  or  twenty.  The  case  was  re- 
ferred to  Dr.  von  Martens,  of  St.  Petersburg,  as  arbitrator,  who 
awarded  damages  to  the  British  Government,  holding  that  "the 
prauw,  floating  derelict  at  sea,  .  .  .  was  seized  incontrovertibly 
outside  the  territorial  waters  of  the  Dutch  Indies."  In  the  course 
of  his  award  he  observed  that  "the  right  of  sovereignty  of  the 
state  over  territorial  waters  is  determined  by  the  range  of  cannon 
measured  from  the  low-water  mark."  On  the  facts  proved,  how- 
ever, the  question  of  the  three-mile  limit  was  not  involved  in  the 
decision,  the  distance  of  the  prauw  from  the  shore  having  far  ex- 
ceeded the  range  of  cannon  shot. 

(Taken  textually  from  Moore:  Digest  of  International  Law,  vol. 

Ji  PP- 


CHAPTER   VIII 

THE  CONTROL  OVER  NATIONALS  AND  NATIONAL  VES- 
SELS, AND  THE  EXERCISE  OF  JURISDICTION  OVER 
CERTAIN  ACTS  OCCURRING  WITHIN  A  FOREIGN 
STATE 


§41.    EXERCISE    OF    JURISDICTION    OVER    REPATRIATED 
NATIONALS  FOR  CRIMES  AND  ACTS  DONE  ABROAD 


OFFENSES   COMMITTED    BY   FRENCHMEN   ABROAD 

(1910) 

CERTAIN  states,  notably  France  and  Italy,  refuse  to  extradite 
their  nationals  for  the  trial  of  crimes  committed  in  other  coun- 
tries. Notwithstanding  the  forceful  arguments  which  other  gov- 
ernments adduce,  France  continues  to  make  the  non-extradition 
of  her  nationals  a  fixed  principle  from  which  she  will  not  recede. 
As  a  corollary  France  recognizes  her  obligation  to  punish  French- 
men for  offenses  committed  abroad.  In  a  recent  act  passed  Febru- 
ary 26,  1910,  the  French  Government  modified  article  5  of  the 
Code  of  Criminal  Procedure  to  read  as  follows: 

"  Every  Frenchman  who  has,  outside  of  the  territory  of  France, 
committed  a  crime  punished  by  the  French  law,  may  be  prosecuted 
and  judgment  passed  upon  him  in  France. 

"Every  Frenchman  who,  outside  of  French  territory,  has  com- 
mitted an  act  qualified  by  the  French  law  as  an  offense  (dtlif), 
may  be  prosecuted  and  judged  in  France  if  such  act  is  punished 
by  the  legislation  of  the  country  where  it  was  committed. 

"The  same  provision  applies  if  the  accused  has  acquired  French 
nationality  since  the  commission  of  the  crime  or  offense. 

"Nevertheless,  no  prosecution  shall  be  instituted  in  the  case  of 


374 

a  crime  or  offense  when  the  accused  shows  that  he  was  tried 
abroad,  and  in  case  of  conviction,  has  served  his  sentence,  or  been 
pardoned,  or  the  sentence  itself  has  been  outlawed, 

"In  the  case  of  an  offense  committed  against  a  Frenchman  or 
an  alien,  the  prosecution  cannot  be  begun  without  a  complaint 
made  by  the  attorney  of  the  government.  It  should  be  preceded 
by  a  complaint  of  the  party  injured  or  by  an  official  notification 
to  the  French  authorities  by  the  government  of  the  country  where 
the  offense  was  committed. 

"No  prosecution  shall  be  begun  before  the  return  to  France  of 
the  accused,  except  in  the  case  of  the  crimes  enumerated  in  article 
7,  which  follows." 

(British  and  Foreign  State  Papers  [1909-10],  vol.  cm,  pp. 
S36-37-) 


§42.    EXERCISE    OF    JURISDICTION    OVER    NATIONALS 
RESIDENT  ABROAD 


MARRIAGE  OF  AMERICAN  WOMEN  TO  SUBJECTS  OF 
GREECE   (1910) 

Minister  Moses  to  the  Secretary  of  State 

AMERICAN  LEGATION, 

Athens,  January  27,  ipio. 

Sir:  I  have  the  honor  to  report  that  Mr.  Horton,  Consul-General 

at  Athens,  has  called  to  my  attention  the  case  of  Mrs. ,  of 

— ,  a  native  American,  married  to  a  Greek,  who  now,  as 
she  writes  to  Mr.  Horton,  has  deserted  her  and  returned  to  his 
native  country,  where,  as  she  suspects,  he  purposes  to  take  another 
wife. 

Both  Mr.  Horton's  inquiries  and  my  own  have  been  fruitless  to 
locate  the  man;  and  even  had  we  been  successful  in  this  no  sub- 
stantial relief  could  have  been  found  for  Mrs.  .  The 

Greek  Church  is  established  by  the  constitution,  and  it  and  the 
Greek  nation  are  practically  coeval.  Marriage  is,  therefore,  by 
Greek  law,  a  sacrament  and  not  a  civil  contract,  and  has  no  valid- 
ity unless  the  ceremony  is  performed  by  an  orthodox  priest.  Ac- 


THE  CASE  OF  ARAKELYAN  375 

cordingly,  a  Greek  who  marries  in  a  foreign  jurisdiction  is  at  per- 
fect freedom  to  regard  his  marriage  bonds  annulled  upon  returning 
to  Greek  jurisdiction;  and  Mr.  Horton  tells  me  that  several  cases 
of  this  character  have  occurred  during  his  residence  here. 

There  seems  to  be  no  remedy.  The  British  Minister  here  tells 
me  that  his  countrywomen  have  encountered  this  difficulty,  and 
that  he  found  himself  powerless  to  help  them.  He  added  that 
a  similar  condition  formerly  existed  in  respect  of  Anglo-French 
marriages  contracted  in  Great  Britain,  and  that  a  special  conven- 
tion was  necessary  to  remedy  it.  Such  recourse  cannot  be  had 
here  by  reason  of  the  peculiar  ecclesiastical  situation,  but  I  have 
the  honor  to  suggest  that  the  publication  in  America  by  the  De- 
partment of  the  conditions  outlined  above  might  serve  as  some 
measure  of  protection  to  American  women  who  contemplate 
matrimony  with  Greek  subjects. 

I  have,  etc., 

GEORGE  H.  MOSES. 

(Foreign  Relations  of  the  United  States,  1910,  p.  640.) 


THE  CASE  OF  ARAKELYAN  (1885) 

ON  May  16,  1885,  Jacob  J.  Arakelyan,  of  Boston,  wrote  the 
following  letter  to  the  Secretary  of  State: 

Dear  Sir:  I  was  about  nineteen  years  old  when  I  left  Turkey  and 
came  to  the  United  States.  It  is  now  nearly  eighteen  years  that  I 
have  been  in  this  country,  where  I  have  married  an  American  lady, 
and  become  so  permanently  settled,  that  it  is  not  likely  I  shall 
ever  return  to  the  East.  For  more  than  fourteen  years  I  have 
been  an  American  citizen,  taxpayer,  and  voter.  My  father,  Arakel 
Jangigian  (an  Armenian),  with  his  family,  resides  in  the  town  of 
Arabkir,  Harpoot  Pashalik,  Turkey.  His  circumstances,  like  the 
majority  of  those  in  that  land,  are  not  in  a  prosperous  condition, 
and  I  am  obliged  to  aid  him  pecuniarily. 

"Letters  from  him  tell  me  that  the  Turkish  Government  not 
only  continue  the  habit  of  collecting  taxes  from  him,  on  my  ac- 
count, but  to  improve  the  roads  of  that  vicinity  (compelling  the 
people  to  work  without  pay)  they  have  taken  my  young  brother 


376  JURISDICTION  OVER  NATIONALS  ABROAD 

and  kept  him  double  length  of  the  required  time  because  of  my 
absence." 

The  letter  concluded  with  an  appeal  to  secure  the  interposition 
of  the  government.  Arakelyan  was  told  that "  before  any  measures 
could  be  taken  in  the  premises  he  must  furnish  proof  of  his  naturali- 
zation," and  in  a  letter  of  the  2gth  he  enclosed  a  certified  copy  of 
the  required  paper. 

Whereupon  Acting  Secretary  of  State  Porter  sent  the  American 
Charge  at  Constantinople  the  following  instructions: 

"Taxation  may  no  doubt  be  imposed,  in  conformity  with  the 
law  of  nations,  by  a  sovereign  on  the  property  within  his  jurisdic- 
tion of  a  person  who  is  domiciled  in  and  owes  allegiance  to  a  foreign 
country.  It  is  otherwise,  however,  as  to  a  tax  imposed,  not  on 
such  property,  but  on  the  person  of  the  party  taxed  when  elsewhere 
domiciled  and  elsewhere  a  citizen.  Such  a  decree  is  internationally 
void,  and  an  attempt  to  execute  it  by  penalties  on  the  relatives  of 
the  party  taxed  gives  the  person  as  taxed  a  right  to  appeal  for 
diplomatic  intervention  to  the  government  to  which  he  owes 
allegiance.  To  sustain  such  a  claim  it  is  not  necessary  that  the 
penalties  should  have  been  imposed  originally  and  expressly  on 
the  person  so  excepted  from  jurisdiction.  It  is  enough  if  it  appears 
that  the  tax  was  levied  in  such  a  way  as  to  reach  him  through  his 
relatives. 

"It  is  desired,  therefore,  that  you  bring  the  complaint  of  Mr. 
Arakelyan,  as  cited  in  the  enclosed  copies  of  his  letters,  to  the 
notice  of  the  Ottoman  Government,  requesting  that  the  sum  re- 
ceived for  any  taxes  imposed  on  his  relatives  on  his  account  be 
refunded,  that  the  value  of  the  road  services  rendered  by  Mr. 
Arakelyan's  brother  be  returned,  and  that  no  further  taxes  on 
account  of  Mr.  Arakelyan  be  imposed  on  his  family." 

On  July  23  Charge  Emmet  reported  his  interview  with  the 
Turkish  Foreign  Minister  in  regard  to  the  case: 

"His  Excellency  presupposes  that  at  the  time  Mr.  J.  J.  Ara- 
kelyan left  his  native  town,  Arabkir,  some  of  his  relatives  entered 
into  bonds,  thereby  enabling  him  to  absent  himself  from  home, 
and  hence  the  exaction  of  taxes  and  labor  on  his  behalf  since  his 
departure. 

"If  Mr.  Arakelyan  will  take  the  trouble  to  file  a  petition  with 


THE  CASABLANCA  ARBITRATION  377 

the  Turkish  Minister  in  America,  setting  forth  the  facts  of  his 
case,  his  reason  for  becoming  naturalized,  and  exhibiting  the 
proofs  of  his  naturalization,  the  minister  will  forward  a  communi- 
cation to  the  authorities  of  his  former  home,  and  have  his  name 
stricken  from  the  records,  thus  relieving  his  parents  from  the  bur- 
den of  further  taxation  or  labor  on  his  account.  As  to  the  restitu- 
tion of  moneys  already  disbursed,  or  remuneration  for  labor  per- 
formed, His  Excellency  said  there  would  be  no  hope  for  recovery. 
In  his  own  words,  'We  will  forgive  him  for  the  future,  and  he  must 
forgive  the  Turkish  Government  for  the  past.' 

"The  system  of  bonding  would-be  absentees  is  quite  a  general 
practice  in  Turkey,  and  will  undoubtedly  be  found  the  origin  of 
the  above  case." 

In  a  letter  of  August  20,  1885,  to  Secretary  Bayard,  Arakelyan 
reviewed  the  facts  of  his  case  and  said:  "Please  observe,  in  view 
of  the  above  facts,  that  there  have  been  no  obstacles  to  my  coming 
to  this  country  besides  my  father's  unwillingness  to  part  with  his 
son,  at  first,  and  that  no  one  has  ever  entered  into  bonds  for  me 
that  I  know  of,  nor  did  I  ever  hear  of  such  a  custom,  as  I  must  have 
done  had  any  such  arrangement  been  entered  into  for  me,  as  the 
Turkish  Minister  of  Foreign  Affairs  presupposes." 

On  August  27,  1885,  the  Department  of  State  transmitted  this 
letter  to  the  American  representative  and  instructed  him  "to  peti- 
tion the  Turkish  Government  for  an  irade,  so  that  his  name  may  be 
stricken  from  the  records,  thereby  relieving  his  parents  from  the 
burden  of  further  taxation  or  labor  on  his  account." 

(Foreign  Relations  of  the  United  States,  1885,  pp.  848-49;  854- 
55  J  860-) 


§43.   CONSULAR  OR  EXTRATERRITORIAL  JURISDICTION 


THE  CASABLANCA  ARBITRATION 

The  Permanent  Court  of  Arbitration  at  The  Hague,  1909 

IN  1908,  in  the  course  of  French  expansion  in  Morocco,  the 
city  of  Casablanca  was  occupied  by  French  troops  and  jurisdic- 
tion over  it  passed  to  the  military  authorities.  During  the  occu- 


378    CONSULAR  OR  EXTRATERRITORIAL  JURISDICTION 

pation,  on  September  25,  an  incident  occurred  which  at  once 
assumed  international  importance  and  all  but  precipitated  a  Euro- 
pean crisis.  Six  deserters  from  the  Foreign  Legion,  under  the 
conduct  and  protection  of  M.  Just,  chancellor  of  the  German  Con- 
sulate at  Casablanca,  attempted  to  take  passage  on  a  German 
vessel  lying  off  the  harbor,  bound  for  Hamburg.  The  deserters, 
three  of  whom  were  of  German  nationality,  were  promptly  seized 
by  the  French  officials;  a  scuffle  ensued,  blows  were  exchanged,  and 
Abd-el-Kerim,  a  Moroccan  soldier  attached  to  the  consulate,  was 
overpowered  only  after  much  violence  on  both  sides.  In  vain 
M.  Just  protested  that  the  men  were  being  embarked  under  an 
order  signed  by  the  German  Consul;  the  military  authorities  re- 
fused to  release  the  deserters,  though  Abd-el-Kerim  was  given  his 
freedom  as  being  a  German  protege. 

The  German  Consul  at  Casablanca  made  immediate  protest  to 
the  French  Consul,  and  on  October  10  this  was  followed  up  by  the 
demand  of  the  German  Government  for  the  release  of  the  desert- 
ers and  for  an  apology  for  injury  to  the  consular  prerogatives. 
France  refused  to  discuss  the  matter  on  this  basis,  but  eagerly 
adopted  a  German  suggestion  of  arbitration.  In  spite  of  military 
tension,  and  chiefly  through  the  good  offices  of  the  Emperor  of 
Austria,  an  agreement  was  arrived  at  between  the  two  govern- 
ments, submitting  the  whole  question  to  arbitration,  each  party 
undertaking  "to  express  its  regrets  for  the  acts  of  its  agents  in 
accordance  with  the  award  to  be  rendered  by  the  arbitrators 
upon  the  facts  and  upon  the  question  of  law."  Accordingly,  M. 
Renault,  for  France,  and  M.  Kriege,  for  Germany,  were  empow- 
ered to  fix  upon  the  details  of  the  arbitral  procedure  to  be  fol- 
lowed, and  on  November  24  a  compromis  of  nine  articles  was 
signed  at  Berlin  by  representatives  of  the  two  governments.  It 
was  provided  that  there  should  be  five  arbitrators,  chosen  from 
the  Permanent  Court  of  Arbitration  at  The  Hague  within  fifteen 
days  of  the  date  of  the  compromis,  that  copies  of  the  respective 
cases  and  counter-cases  should  be  furnished  the  tribunal  on  speci- 
fied dates,  that  either  the  French  or  German  language  might  be 
employed,  and  that,  in  matters  not  otherwise  provided  for,  the 
Hague  Convention  of  1907  was  to  govern.  After  the  tribunal  had 
decided  the  questions  of  law  and  of  fact,  it  was  to  determine 


THE  CASABLANCA  ARBITRATION  379 

the  situation  of  the  individuate  about  whom  the  dispute  had 
arisen. 

As  its  representatives  upon  the  tribunal,  Germany  designated 
M.  Kriege  and  M.  Fusinato,  an  Italian,  while  France  designated 
M.  Renault  and  Sir  Edward  Fry,  a  British  jurist.  These  four 
chose  as  fifth  member  and  President  ex  officio  M.  von  Hammarsk- 
jb'ld,  of  Sweden.  The  tribunal  met  for  the  first  time  on  May  i, 
1909,  and  held  six  sessions  in  all.  Its  award  was  rendered  on 
May  22,  1909. 

The  question  at  issue  stood  out  very  clear:  Which  was  para- 
mount, in  the  event  of  conflict,  the  authority  of  a  military  occu- 
pant or  the  consular  jurisdiction  of  the  capitulations?  The  French 
case  maintained  the  urgent  and  exclusive  nature  of  military  neces- 
sity, the  German  case,  the  exceptional  status  of  extraterritoriality 
and  its  complete  freedom  from  any  modification  or  supersession 
not  concurred  in  by  the  power  possessing  it. 

It  was  pointed  out  in  the  French  argument  that  two  questions 
were  before  the  consideration  of  the  tribunal: 

(1)  Were  the  deserters  entitled  to  the  protection  of  the  German 
Consul  as  against  the  military  authorities? 

(2)  Had  the  consular  officials  been  treated  contrary  to  inter- 
national law,  and  if  so,  upon  whom  was  the  responsibility? 

Of  the  six  deserters,  three  were  non-Germans,  and  in  extending 
his  protection  to  them  the  German  Consul  had  been  guilty  of  an 
abuse  of  power,  admitting  of  no  argument;  "such  an  act  is  con- 
trary to  the  law  of  nations  which  restricts  the  consular  protection 
to  nationals  or  proteges  of  the  consul's  state."  A  fourth  deserter 
was  a  native  of  Alsace-Lorraine,  who  had  become  naturalized  in 
France,  but  inasmuch  as  Germany  still  considered  him  a  German, 
the  French  case  did  not  seek  to  establish  for  him  a  status  different 
from  that  of  the  other  two  about  whose  German  nationality  there 
was  no  question.  Strictly,  therefore,  the  point  at  issue  was  the 
right  of  the  German  Consul  to  lend  his  aid  and  protection  to  the 
three  Germans.  In  this  he  had  acted  counter  both  to  the  regula- 
tions of  the  German  consular  establishment  and  to  the  principles  of 
international  law.  The  consular  regulations  were  clear  as  to  who 
were  not  entitled  to  protection,  and  among  others  were  those 


380    CONSULAR  OR  EXTRATERRITORIAL  JURISDICTION 

employed,  without  authorization,  in  the  civil  or  military  service 
of  a  foreign  state.  The  precedents  supported  this  contention, 
notably  the  similar  instances  of  desertion  at  Port  Said  in  1895  and 
at  Cairo  in  1900,  in  both  of  which  cases  German  Consuls  had  de- 
clined to  extend  official  assistance  to  then*  compatriots.  But, 
besides,  the  German  Consul  should  be  censured  in  the  name  of 
international  law,  for  he  had  violated  rights  which  were  always 
recognized  as  belonging  to  a  military  occupant  of  foreign  terri- 
tory. The  immunity  from  local  jurisdiction  attaching  to  the  latter 
implied  not  only  that  the  troops  were  still  under  the  military  law 
of  their  state,  but  that  all  offenses  against  the  army  of  occupation 
came  under  the  same  jurisdiction.  Positive  law  in  most  states  was 
clear  on  the  point,  as  well  as  international  practice  and  military 
legislation.  For  instance,  the  military  penal  code  of  Germany,  of 
June  22,  1872,  provided  that  "every  foreigner  or  German,  who,  in 
foreign  territory  occupied  by  German  forces,  commits  against 
German  troops  or  their  allies  or  against  an  authority  established 
by  order  of  the  Emperor  an  offense  provided  for  in  the  laws  of  the 
German  Empire,  shall  be  punished  in  the  same  manner  as  if  he 
had  committed  the  offense  in  German  federal  territory." 

It  followed  that,  in  countries  like  Morocco,  there  resulted  from 
the  fact  of  military  occupation  a  state  of  affairs  incompatible  with 
the  complete  exercise  of  consular  jurisdiction  over  foreign  subjects 
in  occupied  territory.  The  authority  of  the  army  superseded  the 
territorial  jurisdiction  in  western  countries;  still  more  so  in  coun- 
tries of  capitulations.  If  <the  Sultan,  the  sovereign  of  the  occupied 
territory,  was  obliged  to  yield  his  rights  of  jurisdiction,  those  who 
derived  from  him  their  privileges  of  extraterritoriality  ceased  to  ex- 
ercise their  jurisdiction  also  in  cases  of  conflict  with  the  rights  of 
the  occupant,  though  in  the  occupation  of  Casablanca  all  consular 
privileges  had  been  maintained  except  where  military  security 
demanded  otherwise.  German  law  recognized  this  paramountcy 
of  military  occupation  in  its  provisions  for  consular  jurisdiction 
(Law  of  the  Empire,  April  7,  1900),  while  ample  precedent  for  it 
could  be  found  in  recent  events  in  Tunis,  Crete,  and  especially  in 
Samoa,  where  the  German  Government  itself,  in  the  course  of 
military  operations  in  1889,  had  acted  in  the  same  manner  with 
respect  to  desertion  as  had  the  French  at  Casablanca.  In  the 


THE  CASABLANCA  ARBITRATION  381 

Orient,  states  sometimes  voluntarily  gave  up  jurisdiction  in  favor 
of  military  authorities  of  other  states;  the  United  States  and  Great 
Britain  had  agreed  to  this  effect  in  China,  Japan,  and  Siam  as 
regards  British  subjects  enlisted  in  the  American  navy,  on  the 
principle  that  "all  persons  in  the  service  of  a  foreign  state  are 
subject,  during  the  period  of  service,  to  the  exclusive  jurisdiction 
of  that  state." 

On  a  personal  view  of  the  case,  the  deserters  had  entered  the 
French  service  by  regular  contract,  a  contract  of  public  law,  which 
the  legionaries  could  not  break  at  will  and  which  in  any  case  was 
governed  by  French  law.  This  personal  law  was  exclusive  and 
consular  protection  could  not  interpose  itself  between  military  au- 
thority and  its  soldiers  of  foreign  nationality.  Nor  could  it  be 
maintained  that  the  deserters,  having  broken  the  contractual 
bond,  forthwith  came  under  the  exclusive  jurisdiction  of  their 
own  state,  in  this  case  recovering  the  benefit  of  extraterritoriality; 
for,  not  to  mention  other  objections,  this  would  make  possible,  with 
impunity,  attempts  on  the  part  of  the  deserters  to  corrupt  those 
legionaries  that  remained  loyal. 

As  to  the  questions  of  fact,  the  French  argument  maintained 
that  there  was  evidence  that  the  deserters  had  been  assisted  by 
a  plot  fomented  from  without.  That  they  had  been  assembled 
singly,  showed  premeditation.  The  consul  must  have  had  knowl- 
edge that  he  was  departing  from  his  consular  functions,  for  he  had 
had  the  deserters  concealed  and  did  not  mention  their  quality  or 
nationality  in  the  order  signed.  The  omission  of  words  in  a  safe- 
conduct  was  serious  and,  though  M.  Just  was  primarily  respon- 
sible for  this,  the  consul  himself  was  at  fault  in  lending  his 
authority  and  signature.  It  was  no  justification  to  say  that  his 
attention  had  not  been  drawn  to  the  changes  in  the  safe-conduct, 
and  that  he  had  not  read  it;  there  was  not  much  to  read  and 
omissions  were  easily  noticeable. 

The  treatment  of  the  consular  officials  was  justified  by  France 
on  the  ground  of  self-defense.  The  inviolability  of  public  ministers 
(including  consuls  in  countries  of  capitulations)  was  not  absolute, 
but  was  subject  to  qualification  in  the  case  of  acts  provocative  of 
measures  of  defense  or  precaution.  In  the  Casablanca  affair  the 
German  officials  had  been  the  aggressors,  while  the  French  sol- 


382    CONSULAR  OR  EXTRATERRITORIAL  JURISDICTION 

diers  and  marines  "had  only  employed  the  right  of  legitimate 
defense  against  Abd-el-Kerim  and  M.  Just  and  had  done  no  vio- 
lence to  the  consular  inviolability." 

In  its  version  of  the  facts,  the  German  argument  repelled  the 
statement  that  the  consulate  had  encouraged  desertion.  On  the 
contrary,  its  aid  had  been  solicited  at  various  tunes  by  Germans 
who  had  left  the  Foreign  Legion,  and  this  had  been  given  to  the 
extent  of  providing  lodging  and  securing  transportation  to  Ger- 
many for  them  on  condition  that  they  repaid  expenses  later.  In 
order  to  regularize  the  embarkations,  the  consul  had  adopted  a 
special  form  of  safe-conduct  and  had  delegated  the  secretary  of 
the  consulate,  M.  Just,  to  supervise  them.  On  September  22,  a 
German  journalist,  Sievers,  asked  the  consular  protection  for  three 
German  subjects,  which  was  accorded  after  the  consul  had  satis-* 
fied  himself  that  the  claims  to  German  nationality  were  genuine. 
But  in  the  safe-conduct  issued  by  M.  Just  the  number  was  stated 
as  six  and  the  words  "of  German  nationality"  were  omitted. 
The  consul  signed  the  order  without  noticing  the  exact  number 
to  be  embarked  or  the  omission  in  the  text.  This  error  on  the  part 
of  M.  Just  was  freely  confessed  by  Germany,  but  in  no  event  could 
it  have  the  effect  of  withdrawing  the  three  German  deserters  from 
the  consular  protection. 

On  the  question  of  law  Germany  maintained  that  German  na- 
tionality, according  to  the  Law  of  1870,  was  not  lost  by  enlistment 
in  the  military  service  of  a  foreign  state.  Under  the  Convention 
of  Madrid  (1880)  and  the  Act  of  Algeciras  (1906),  Germany  en- 
joyed in  Morocco  the  rights  of  the  most-favored  nation,  which 
included,  among  others,  the  right  of  consular  jurisdiction  as  pos- 
sessed by  Great  Britain  under  treaty  with  Morocco  in  1856.  Hence 
the  German  deserters,  once  away  from  the  French  army,  clearly 
passed  over  to  German  jurisdiction,  which,  as  administered  by  the 
consul  in  Morocco,  was  exclusive  of  all  other.  The  presence  of 
French  troops  in  Casablanca  did  not  alter  the  situation.  The 
Act  of  Algeciras  had  not  accorded  to  France  any  right  of  sover- 
eignty over  Morocco  and  the  independence  of  the  Sultan  and  the 
integrity  of  his  state  ought  to  be  safeguarded.  The  operations  in 
which  the  French  were  engaged  were  only  of  the  nature  of  police 
measures  with  a  view  to  tranquilizing  the  country,  and  that  France 


THE  CASABLANCA  ARBITRATION  383 

had  no  intention  of  making  any  political  changes  was  stated  in  a 
note  communicated  to  the  German  Consul  at  Casablanca  by  the 
French  Consul  in  September,  1908.  Pacific  occupation  did  not 
have  the  same  juridical  effects  as  military  occupation  in  the  course 
of  a  war,  duly  declared,  just  as  a  pacific  blockade  differed  in  its 
legal  consequences  from  a  war  blockade.  The  authority  of  Morocco 
had  not  been  contested  by  France,  as  it  would  have  been  in  case 
of  war.  In  consequence,  the  powers  of  the  occupant  were  no  greater 
than  those  of  the  occupied  state,  and  hence  consular  jurisdiction 
remained  unchanged. 

Further,  it  was  not  a  certainty  that  theories  of  military  occupa- 
tion applied  to  countries  with  capitulations  when  subjects  of  third 
states  were  concerned.  France  had  no  more  rights  in  Morocco  than 
Germany  had  in  Samoa  in  1889,  when  Great  Britain  and  the 
United  States  stood  upon  their  rights  of  extraterritorial  jurisdic- 
tion and  Germany  acquiesced  in  their  claims.  Similar  instances 
of  the  independence  and  integrity  of  consular  jurisdiction  in  the 
face  of  military  measures  were  furnished  by  events  in  Crete  hi 
1897  and  in  China  in  1900.  Hence,  German  extraterritoriality 
remaining  intact,  German  subjects,  when  they  deserted  from  the 
Foreign  Legion,  came  under  the  jurisdiction  of  their  consul.  It 
was  like  passing  beyond  a  frontier  —  the  former  jurisdiction 
ceased  and  another  took  its  place.  In  fully  civilized  states  this 
was  the  territorial  power,  in  countries  of  capitulations,  the  juris- 
diction of  the  consul.  This  was  evident  from  French  precedent 
itself,  as  at  Port  Said,  when  French  troops  deserted  on  the  way 
through  the  canal,  as  well  as  in  China  in  1905,  when  the  French 
Minister  recognized  that  German  authorities  had  jurisdiction 
over  French  deserters  of  German  nationality  on  Chinese  territory. 

Viewing  the  military  service  of  the  legionaries  as  a  contract, 
the  German  contention  was  that  it  was  entirely  a  matter  of  private 
law,  having  no  effects  of  public  law  except  in  France  itself  —  cer- 
tainly none  in  Germany  or  in  Morocco.  Such  a  contract  was  void 
for  a  German  so  long  as  he  had  military  obligations  toward  Ger- 
many. It  was  very  serious  if  the  legionary  still  owed  service  to  a 
German  corps.  Any  contract  that  annulled  German  military 
obligations  was  contrary  to  public  policy  and  might  give  rise  to 
serious  complications;  for  example,  the  contractant  might  be  re- 


384    CONSULAR  OR  EXTRATERRITORIAL  JURISDICTION 

garded  as  a  traitor,  if  fighting  against  his  native  land.  Even  it  the 
contract  was  legal,  the  legionaries  did  not  always  remain  under 
jurisdiction  to  the  end  of  the  contract.  The  military  authority 
was  effective  only  within  the  limits  of  French  territory  or  of 
French  extraterritorial  privileges  in  so  far  as  they  related  to  a 
French  corps  in  a  foreign  country.  And  the  military  extraterri- 
toriality applied  only  to  the  troop  as  such.  The  soldier,  as  an  indi- 
vidual, participated  in  this  privileged  status  only  to  the  extent 
that  he  belonged  effectively  to  the  corps.  Once  the  connection 
was  broken,  he  passed  beyond  its  jurisdiction. 

The  French  contention  that  the  military  authorities  had  been 
subjected  to  the  aggression  of  the  consular  officials  was  incon- 
sistent on  the  face  of  it;  there  had  been  but  two  unarmed  men  as 
against  a  large  number  of  armed  soldiers;  and  even  if  M.  Just  had 
used  violence,  it  could  be  justified  by  reason  of  his  official  relations 
with  the  three  German  deserters.  It  was  especially  serious  to 
affront  a  consular  official  in  public  and  before  the  native  popula- 
tion, for  it  prejudiced  the  standing  of  all  consular  establishments 
in  Morocco  and  worked  detriment  to  the  principles  of  extraterri- 
toriality so  essential  to  communities  under  the  regime  of  capitu- 
lations. 

Accordingly,  it  was  requested  of  the  tribunal  that  its  award 
direct  the  French  Government  to  release  the  three  German  de- 
serters and  to  place  them  at  the  disposal  of  the  German  Govern- 
ment. 

The  decision  in  the  Casablanca  case  was,  in  a  legal  sense,  some- 
what unsatisfactory,  for  it  did  not  take  a  pronounced  position 
in  favor  of  either  of  the  conflicting  principles  involved.  It  showed 
evidence,  in  its  balanced  reasoning,  that  a  political  compromise 
was  sought  rather  than  a  judicial  ruling.  The  substantial  results 
of  the  decision,  however,  were  in  favor  of  France,  for  it  did  not 
call  upon  her  to  surrender  the  deserters  to  Germany.  After  indi- 
cating the  conflict  of  jurisdiction  and  pointing  out  that  France 
had  not  made  known  the  composition  of  the  expeditionary  force 
nor  had  Germany  protested  against  the  employment  of  German 
legionaries  in  Morocco,  the  tribunal  proceeded  to  exonerate  the 
German  Consul  from  any  intentional  error  in  signing  the  safe- 
conduct,  but  declared  that  the  secretary  of  the  consulate  "  ex- 


THE  CASABLANCA  ARBITRATION  385 

ceeded  the  limits  of  his  authority  and  committed  a  grave  and  mani- 
fest violation  of  his  duties."  The  tribunal  was  further  of  opinion 
that  "the  actual  situation  should  have  been  respected  by  the 
French  military  authority  as  far  as  possible,"  leaving  [the  deserters 
"in  sequestration  at  the  German  Consulate  until  the  question 
of  the  competent  jurisdiction  had  been  decided."  Such  a  course 
of  action  would  have  preserved  consular  prestige  and  given  oppor- 
tunity for  more  pacific  measures  of  settlement.  For  all  of  these 
reasons  the  tribunal  declared  and  decided  as  follows: 

"It  was  wrong  and  through  a  grave  and  manifest  error  that 
the  secretary  of  the  Imperial  German  Consulate  at  Casablanca 
attempted  to  have  embarked,  on  a  German  steamship,  deserters 
from  the  French  Foreign  Legion  who  were  not  of  German  na- 
tionality. 

"The  German  Consul  and  the  other  officers  of  the  consulate 
were  not  responsible  in  this  regard;  however,  in  signing  the  safe- 
conduct  which  was  presented  to  him,  the  consul  committed  an 
unintentional  error. 

"The  German  Consulate  did  not,  under  the  circumstances  of 
the  case,  have  the  right  to  grant  its  protection  to  the  deserters  of 
German  nationality;  however,  the  error  of  law  committed  on  this 
point  by  the  officials  of  the  consulate  cannot  be  imputed  against 
them  either  as  an  intentional  or  an  unintentional  error. 

"  It  was  wrong  for  the  French  military  authorities  not  to  respect, 
as  far  as  possible,  the  actual  protection  exercised  over  these  de- 
serters in  the  name  of  the  German  Consulate. 

"Even  leaving  out  of  consideration  the  obligation  to  respect 
consular  protection,  the  circumstances  did  not  warrant,  on  the 
part  of  the  French  soldiers,  either  the  threat  made  with  a  revolver 
or  the  continuation  of  the  blows  inflicted  upon  the  Moroccan 
soldier  of  the  consulate. 

"There  is  no  occasion  for  passing  on  the  other  charges  con- 
tained in  the  conclusions  of  the  two  parties." 

(Revue  Generate  de  Droit  International  Public,  vol.  xvn,  pp. 
326-407;  American  Journal  of  International  Law,  vol.  m,  pp. 
176-78;  755-60;  G.  G.  Wilson:  The  Hague  Arbitration  Cases.) 


386    JURISDICTION  OVER  ALIENS  FOR  ACTS  ABROAD 


§  44.  EXERCISE  OF  JURISDICTION  OVER  ALIENS  FOR  ACTS 
DONE   WITHIN  ANOTHER  STATE 


CUTTING'S  CASE  (1886) 

IN  his  instructions  of  July  20,  1886,  to  Mr.  Jackson,  Minister 
to  Mexico,  Secretary  Bayard  said: 

"After  reading  the  telegrams  and  dispatches  (copies  of  which  I 
enclose  for  your  information)  of  Mr.  J.  Harvey  Brigham,  United 
States  Consul  at  El  Paso,  Mexico,  and  also  your  No.  266,  dated 
the  8th  instant,  relating  to  the  case  of  Mr.  A.  K.  Cutting,  I  tele- 
graphed you  on  the  igth  instant  as  follows: 

"'You  are  instructed  to  demand  of  the  Mexican  Govern- 
ment the  instant  release  of  A.  K.  Cutting,  a  citizen  of  the 
United  States,  now  unlawfully  imprisoned  at  Paso  del 
Norte.' 

"By  the  documents  before  me  the  following  facts  appear: 
"On  June  18  last  A.  K.  Cutting,  a  citizen  of  the  United  States, 
who  for  the  preceding  eighteen  months  had  been  a  resident,  'off 
and  on,'  of  Paso  del  Norte,  Mexico,  and  as  to  whose  character  for 
respectability  strong  evidence  has  been  adduced,  published  in  a 
newspaper  of  El  Paso,  Texas,  a  card  commenting  on  certain 
proceedings  of  Emigdio  Medina,  a  citizen  of  Mexico,  with  whom 
Mr.  Cutting  has  been  in  controversy.  For  this  publication  Mr. 
Cutting  was  imprisoned  on  the  22d  of  June  last,  at  El  Paso  del 
Norte,  in  Mexico.  Such  a  publication  would  not,  even  had  it 
been  made  in  Mexico,  be  the  subject  of  criminal  prosecution  in 
that  country,  according  to  the  Roman  common  law  there  in  force, 
nor  of  any  adverse  governmental  action,  unless,  perhaps,  for  the 
single  purpose  of  requiring  security  in  some  small  sum  to  keep  the 
peace.  But  the  paper  was  not  published  in  Mexico,  and  the  propo- 
sition that  Mexico  can  take  jurisdiction  of  its  author  on  account 
of  its  publication  in  Texas  is  wholly  inadmissible  and  is  peremp- 
torily denied  by  this  government.  It  is  equivalent  to  asserting 
that  Mexico  can  take  jurisdiction  over  the  authors  of  the  various 


CUTTING'S  CASE  387 

criticisms  of  Mexican  business  operations  which  appear  in  the 
newspapers  of  the  United  States.  If  Mr.  Cutting  can  be  tried  and 
imprisoned  in  Mexico  for  publishing  in  the  United  States  a  criti- 
cism on  a  Mexican  business  transaction  in  which  he  was  concerned, 
there  is  not  an  editor  or  publisher  of  a  newspaper  in  the  United 
States  who  could  not,  were  he  found  in  Mexico,  be  subjected  to 
like  indignities  and  injuries  on  the  same  ground.  To  an  assump- 
tion of  such  jurisdiction  by  Mexico  neither  the  Government  of  the 
United  States  nor  the  governments  of  our  several  states  will 
submit.  They  will  each  mete  out  due  justice  to  all  offenses  com- 
mitted in  their  respective  jurisdictions.  They  will  not  permit 
that  this  prerogative  shall  in  any  degree  be  usurped  by  Mexico, 
nor,  aside  from  the  fact  of  the  exclusiveness  of  their  jurisdiction 
over  acts  done  within  their  own  boundaries,  will  they  permit  a 
citizen  of  the  United  States  to  be  called  to  account  by  Mexico 
for  acts  done  by  him  within  the  boundaries  of  the  United 
States.  On  this  ground,  therefore,  you  will  demand  Mr.  Cutting's 
release. 

"But  there  is  another  ground  on  which  this  demand  may  with 
equal  positiveness  be  based.  By  the  law  of  nations  no  punishment 
can  be  inflicted  by  a  sovereign  on  citizens  of  other  countries  unless 
in  conformity  with  those  sanctions  of  justice  which  all  civilized 
nations  hold  in  common. 

"Among  these  sanctions  are  the  right  of  having  the  facts  on 
which  the  charge  of  guilt  was  made  examined  by  an  impartial 
court,  the  explanation  to  the  accused  of  these  facts,  the  oppor- 
tunity granted  to  him  of  counsel,  such  delay  as  is  necessary  to 
prepare  his  case,  permission  in  all  cases  not  capital  to  go  at  large 
on  bail  till  trial,  the  due  production  under  oath  of  all  evidence 
prejudicing  the  accused,  giving  him  the  right  to  cross-examination, 
the  right  to  produce  his  own  evidence  in  exculpation,  release  even 
from  temporary  imprisonment  in  all  cases  where  the  charge  is 
simply  one  of  threatened  breach  of  the  peace,  and  where  due 
security  to  keep  the  peace  is  tendered.  All  these  sanctions  were 
violated  in  the  present  case.  Mr.  Cutting  was  summarily  impris- 
oned by  a  tribunal  whose  partiality  and  incompetency  were  alike 
shown  by  its  proceedings.  He  was  refused  counsel;  he  was  refused 
an  interpreter  to  explain  to  him  the  nature  of  the  charges  brought 


388    JURISDICTION  OVER  ALIENS  FOR  ACTS  ABROAD 

against  him;  if  there  was  evidence  against  him  it  was  not  produced 
under  oath,  with  an  opportunity  given  him  for  cross-examination; 
bail  was  refused  to  him;  and  after  a  trial,  if  it  can  be  called  such, 
violating,  in  its  way,  the  fundamental  sanctions  of  civilized  jus- 
tice, he  was  cast  into  a  'loathsome  and  filthy'  cell,  where,  accord- 
ing to  one  of  the  affidavits  attached  to  Mr.  Brigham's  report, 
'  there  are  from  six  to  eight  other  prisoners,  and  when  the  door  is 
locked  there  are  no  other  means  of  ventilation '  —  an  adobe  house, 
almost  air-tight,  with  a  'dirt  floor;'  he  was  allowed  about  '8^  cents 
American  money  for  his  subsistence;'  he  was  'not  furnished  with 
any  bedding,  not  even  a  blanket.'  In  this  wretched  cell,  subjected 
to  pains  and  deprivations  which  no  civilized  government  should 
permit  to  be  inflicted  on  those  detained  in  its  prisons,  he  still  lan- 
guishes, and  this  for  an  act  committed  in  the  United  States,  and 
in  itself  not  subject  to  prosecution  in  any  humane  system  of 
jurisprudence,  and  after  a  trial  violating  the  chief  sanctions  of 
criminal  procedure. 

"These  circumstances  you  will  state  as  giving  an  additional 
basis,  a  basis  which  if  it  be  established  this  government  will  not 
permit  to  be  questioned,  for  the  demand  for  Mr.  Cutting's  imme- 
diate release." 

On  July  24,  the  Mexican  Minister  communicated  a  copy  of 
article  186  of  the  Mexican  Penal  Code  authorizing  punishment 
for  the  offense  of  which  Cutting  was  accused. 

Although  Cutting  had  been  previously  released,  President 
Cleveland,  in  his  annual  message  of  December  6,  1886,  said  in 
criticism  of  the  Mexican  contention: 

"The  admission  of  such  a  pretension  would  be  attended  with 
serious  results,  invasive  of  the  jurisdiction  of  this  government,  and 
highly  dangerous  to  our  citizens  in  foreign  lands;  therefore  I  have 
denied  it,  and  protested  against  its  attempted  exercise,  as  unwar- 
ranted by  the  principles  of  law  and  international  usages. 

"A  sovereign  has  jurisdiction  of  offenses  which  take  effect  within 
his  territory,  although  concocted  or  commenced  outside  of  it;  but 
the  right  is  denied  of  any  foreign  sovereign  to  punish  a  citizen  of 
the  United  States  for  an  offense  consummated  on  our  soil  in  viola- 
tion of  our  laws,  even  though  the  offense  be  against  a  subject  or 
citizen  of  such  sovereign.  The  Mexican  statute  in  question  makes 


CUTTING'S  CASE  389 

the  claim  broadly,  and  the  principle,  if  conceded,  would  create  a 
dual  responsibility  in  the  citizen,  and  lead  to  inextricable  confu- 
sion, destructive  of  that  certainty  in  the  law  which  is  an  essential 
of  liberty." 

In  a  note  to  the  Mexican  Charg6,  of  November  i,  1887,  Secretary 
Bayard  reviewed  the  case,  and  referred  to  the  action  of  the  French 
Government  in  1852,  when,  because  of  representations  made  by 
the  British  Government,  a  proposed  law  to  exercise  jurisdiction 
over  offenses  against  Frenchmen  committed  abroad  by  aliens  was 
withdrawn.  In  this  connection  Mr.  Bayard  said:  "Sincerely  de- 
sirous of  maintaining  with  the  Government  of  Mexico  the  most 
cordial  and  friendly  relations,  I  cannot  think  that  that  end  could 
be  more  signally  promoted  than  by  that  government  following  the 
highly  honorable  example  of  France  in  removing  from  the  amica- 
ble relations  of  the  two  countries  a  law  which  stands  as  a  constant 
menace  to  their  continuance." 

In  regard  to  the  objection  on  the  ground  of  the  inability  of  the 
federal  authorities  to  interfere,  the  Secretary  of  State  instanced  the 
case  of  McLeod  when  "  Congress  amended  the  law  relating  to  the 
issuance  of  writs  of  habeas  corpus  so  as  to  facilitate  the  perform- 
ance by  the  Government  of  the  United  States  of  its  international 
obligations."  These  arguments  in  the  note  were  accompanied  by 
the  exhaustive  report  prepared  by  John  Bassett  Moore  on  extra- 
territorial crime. 

The  difference  was  satisfactorily  settled  some  years  later  by  a 
provision  in  the  extradition  treaty  of  February  22,  1899,  between 
the  United  States  and  Mexico,  by  which  the  contracting  parties 
agreed,  except  in  the  case  of  the  crimes  of  "embezzlement  or 
criminal  malversation  of  public  funds  committed  within  the 
jurisdiction  of  either  party  by  public  officers  or  depositaries,  .  .  . 
not  to  assume  jurisdiction  in  the  punishment  of  crimes  committed 
exclusively  within  the  territory  of  the  other." 

(Extracted  and  condensed  from  Moore:  Digest  of  International 
Law,  vol.  n,  pp.  228-42.) 


390    CONTROL  OVER  VESSELS  FLYING  NATIONAL  FLAG 
§45.  TAXATION  OF  PROPERTY  SITUATED  ABROAD 

(See  Case  of  Arakelyan,  p.  375,  and  Case  of  Mrs.  Honey,  p.  373.) 


§  46.  CONTROL  OVER  VESSELS  FLYING  THE  NATIONAL  FLAG 


REGINA  v.  LESLEY  (1860) 

THE  judgment  of  the  court,  delivered  January  28,  1860,  suf- 
ficiently states  the  case: 

"In  this  case  the  question  is,  whether  a  conviction  for  false 
imprisonment  can  be  sustained  upon  the  following  facts: 

"The  prosecutor  and  others,  being  in  Chile,  and  subjects  of 
that  state,  were  banished  by  the  government  from  Chile  to 
England. 

"The  defendant,  being  master  of  an  English  merchant  vessel 
lying  in  the  territorial  waters  of  Chile,  near  Valparaiso,  contracted 
with  that  government  to  take  the  prosecutor  and  his  companions 
from  Valparaiso  to  Liverpool,  and  they  were  accordingly  brought 
on  board  the  defendant's  vessel  by  the  officers  of  the  government, 
and  carried  to  Liverpool  by  the  defendant  under  his  contract. 
Then,  can  the  conviction  be  sustained  for  that  which  was  done 
within  the  Chilean  waters?  We  answer  no. 

"We  assume  that  in  Chile  the  act  -of  the  government  towards 
its  subjects  was  lawful;  and,  although  an  English  ship  in  some  re- 
spects carries  with  her  the  laws  of  her  country  in  the  territorial 
waters  of  a  foreign  state,  yet  in  other  respects  she  is  subject  to  the 
laws  of  that  state  as  to  acts  done  to  the  subjects  thereof. 

"We  assume  that  the  government  could  justify  all  that  it  did 
within  its  own  territory,  and  we  think  it  follows  that  the  defend- 
ant can  justify  all  that  he  did  there  as  agent  for  the  government, 
and  under  its  authority.  In  Dobree  v.  Napier,1  the  defendant,  on 

1  2  Bing.  N.  C.  781. 


REGINA  r.  LESLEY  391 

behalf  of  the  Queen  of  Portugal,  seized  the  plaintiff's  vessel  for 
violating  a  blockade  of  a  Portuguese  port  in  time  of  war.  The 
plaintiff  brought  trespass;  and  judgment  was  for  the  defendant, 
because  the  Queen  of  Portugal,  in  her  own  territory,  had  a  right 
to  seize  the  vessel  and  to  employ  whom  she  would  to  make  the 
seizure;  and  therefore  the  defendant,  though  an  Englishman 
seizing  an  English  vessel,  could  justify  the  act  under  the  employ- 
ment of  the  Queen. 

"We  think  that  the  acts  of  the  defendant  in  Chile  become 
lawful  on  the  same  principle,  and  therefore  no  ground  for  the 
conviction. 

"The  further  question  remains,  can  the  conviction  be  sustained 
for  that  which  was  done  out  of  the  Chilean  territory?  And  we  think 
it  can. 

"It  is  clear  that  an  English  ship  on  the  high  seas,  out  of  any 
foreign  territory,  is  subject  to  the  laws  of  England;  and  persons, 
whether  foreign  or  English,  on  board  such  ship,  are  as  much  amen- 
able to  English  law  as  they  would  be  on  English  soil.  In  Regina 
v.  Saltier  (Dears.  &  Bell's  C.  C.  R.  525),  this  principle  was  acted 
on,  so  as  to  make  the  prisoner,  a  foreigner,  responsible  for  mur- 
der on  board  an  English  ship  at  sea:  the  same  principle  has  been 
laid  down  by  foreign  writers  on  international  law,  among  which 
it  is  enough  to  cite  Ortolan  (sur  la  Diplomatic  de  la  Mer,  liv.  2, 
cap.  13). 

"The  Merchant  Shipping  Act  (17  &  18  Viet.  c.  104,  s.  267) 
makes  the  master  and  seamen  of  a  British  ship  responsible  for 
all  offenses  against  property  or  person  committed  on  the  sea  out 
of  Her  Majesty's  dominions  as  if  they  had  been  committed  within 
the  jurisdiction  of  the  Admiralty  of  England. 

"Such  being  the  law,  if  the  act  of  the  defendant  amounted  to  a 
false  imprisonment  he  was  liable  to  be  convicted.  Now,  as  the 
contract  of  the  defendant  was  to  receive  the  prosecutor  and  the 
others  as  prisoners  on  board  his  ship,  and  to  take  them,  without 
their  consent,  over  the  sea  to  England,  although  he  was  justified 
in  first  receiving  them  in  Chile,  yet  that  justification  ceased  when 
he  passed  the  line  of  Chilean  jurisdiction,  and  after  that  it  was  a 
wrong  which  was  intentionally  planned  and  executed  in  pursuance 
of  the  contract,  amounting  in  law  to  a  false  imprisonment. 


392    CONTROL  OVER  VESSELS  FLYING  NATIONAL  FLAG 

"It  may  be  that  transportation  to  England  is  lawful  by  the  law 
of  Chile,  and  that  a  Chilean  ship  might  so  lawfully  transport 
Chilean  subjects;  but  for  an  English  ship  the  laws  of  Chile,  out  of 
the  state,  are  powerless,  and  the  lawfulness  of  the  acts  must  be 
tried  by  English  law. 

"For  these  reasons,  to  the  extent  above  mentioned,  the  convic- 
tion is  affirmed. 

"Conviction  confirmed  accordingly." 

(Bell's  Crown  Cases,  Court  of  Queen's  Bench  and  the  Courts 
of  Error  [London,  1861],  pp.  232-35.) 


THE  TCHERNIAK  AFFAIR  (1907) 

ERNEST  L£ MONON  (under  Notes  in  the  Revue  de  Droit  Inter- 
national et  de  Legislation  Comparee  [1907],  2d  series,  vol.  ix,  pp. 
316-20)  relates  an  interesting  case  from  which  is  taken  the  fol- 
lowing abstract  of  the  facts: 

February  15,  1907,  a  Swedish  merchantman,  Olof  Wyk,  bound 
for  Sweden,  touched  at  the  port  of  Antwerp  having  on  board  four 
dead.  The  vessel  intended  to  make  but  a  short  stay  at  Antwerp, 
but  because  of  circumstances  consequent  upon  the  death  of  the 
four  passengers  she  could  not  leave  before  the  i8th. 

Upon  the  vessel's  arrival  at  Antwerp,  one  filie  Tcherniak, 
brother  of  one  of  the  deceased,  the  French  revolutionist  Tcher- 
niak, notified  the  Antwerp  authorities  that  his  brother  had  been 
assassinated  by  a  person  unknown.  The  Antwerp  authorities 
refused  to  act  upon  the  complaint  because  the  place  where  the 
alleged  crime  was  committed  was  aboard  a  Swedish  ship  upon 
the  high  seas.  They  considered  that  the  Swedish  Consul  was 
the  authority  competent  to  investigate  the  matter,  not  the  Bel- 
gian officials.  Following  this  advice,  filie  Tcherniak  laid  his 
complaint  before  the  Swedish  Consul,  who  then  asked  the  Belgian 
authorities  to  help  him  conduct  the  investigation.  Acting  upon 
a  commission  rogatory,  the  investigating  magistrate,  Caroly,  of 
Antwerp,  appointed  four  experts,  two  doctors  of  medicine  and  two 
chemists,  to  make  an  autopsy  of  the  four  bodies  and  in  particular 
of  the  body  of  Tcherniak,  for  the  purpose  of  discovering  the  cause 


THE  TCHERNIAK  AFFAIR  393 

of  the  deaths.  ]  The  ship's  officers  were  unable  to  give  any  precise 
information  in  regard  to  the  circumstances  attending  the  death 
of  the  four  passengers,  and  the  principal  effort  of  the  investigation 
was  to  decide  if  the  deaths  had  been  caused  by  murder  or  if  there 
had  been,  on  the  contrary,  some  simple  accidental  cause.  Certain 
Socialists  in  Belgium  made  great  clamor  about  the  affair  and  lost 
no  time  in  proclaiming  that  Tcherniak,  who  had  been  expelled 
from  Russia  as  a  revolutionist  and  had  taken  refuge  in  France 
and  then  in  England,  had  certainly  been  assassinated  on  board 
the  Olof  Wyk  at  the  instigation  of  the  Russian  police  and  the 
supporters  of  the  Tsar,  who  were  terrified  at  the  prospect  of  his 
return  to  Sweden. 

On  the  part  of  the  public,  there  was,  however,  a  general  disposi- 
tion to  await  the  result  of  the  inquest'  before  forming  an  opinion. 
After  the  experts  had  made  the  autopsy  of  jthe  bodies  and  visited 
the  Olof  Wyk,  they  eliminated  the  hypothesis  that  the  deaths 
were  due  to  crime  and  concluded,  as!  far  as  concerned  Tcherniak, 
that  death  had  been  due  to  carbon  monoxide,  the  poisonous 
fumes  of  which  had  been  given  off  by  a  defective  heating  appa- 
ratus. They  asked  that  a  fifth  expert  and  engineer  be  added  to 
their  number  for  the  purpose  of  examining  the  technical  arrange- 
ments of  the  vessel. 


CHAPTER   IX 

THE  COOPERATION  OF  STATES  FOR  A  RECIPROCAL 

BENEFIT 


§  47.  RECIPROCITY  AS  A  BASIS  OF  TREATMENT  BETWEEN 

GOVERNMENTS 


THE  SANTA   CRUZ 

The  High  Court  of  Admiralty,  1798 

THIS  was  a  case  of  a  Portuguese  vessel  taken  by  the  French, 
and  retaken  by  English  cruisers,  after  being  a  month  in  the  pos- 
session of  the  enemy:  it  was  the  leading  case  of  several  of  the  same 
nature,  as  to  the  general  law  of  recapture  between  England  and 
Portugal.  .  .  . 

Sir  W.  Scott:  "These  are  cases  of  Portuguese  ships  or  cargoes, 
eight  in  number,  which  have  been  recaptured  at  different  times  by 
British  cruisers. 

"As  far  as  the  dates  of  the  recaptures  are  material,  they  are  to 
be  distinguished  under  three  periods:  The  first  vessel  was  recap- 
tured before  the  month  of  December  1796,  when  an  ordinance  on 
the  subject  of  recapture  passed  in  Portugal;  the  second  was  retaken 
between  the  months  of  December  1796  and  May  1797,  when  an- 
other ordinance  took  place,  more  expressly  respecting  the  prop- 
erty of  allies  recaptured  from  the  enemy;  the  rest  may  be  stated 
generally,  without  farther  distinction,  to  have  been  taken  subse- 
quently to  the  9th  of  May  1797.  It  is  necessary  to  distinguish 
these  dates,  as  it  is  said  the  difference  of  date  may  affect  the  appli- 
cation of  the  general  principle,  whatever  that  may  be,  to  the  par- 
ticular cases. 

"They  are  cases  of  very  considerable  value,  of  much  impor- 
tance, and  of  no  mean  difficulty  in  many  respects;  under  a  choice 


THE  SANTA  CRUZ  395 

of  cases,  they  are  not  such  as  I  should  particularly  wish  to  de- 
termine; but  they  devolve  on  me  in  the  regular  course  of  my  duty; 
and  I  am  bound  to  decide  them  according  to  my  own  best  informed 
apprehensions  of  law  and  justice,  of  the  general  law  of  nations, 
as  it  has  been  understood  and  administered  in  the  British  Courts 
of  Admiralty. 

"In  the  arguments  of  the  council,  I  have  heard  much  of  the 
rules  which  the  law  of  nations  prescribes  on  recapture,  respecting 
the  time  when  property  vests  in  the  captor;  and  it  certainly  is  a 
question  of  much  curiosity,  to  enquire  what  is  the  true  rule  on 
this  subject;  when  I  say,  the  true  rule,  I  mean  only  the  rule  to 
which  civilized  nations,  attending  to  just  principles,  ought  to  ad- 
here; for  the  moment  you  admit,  as  admitted  it  must  be,  that  the 
practice  of  nations  is  various,  you  admit  there  is  no  rule  operating 
with  the  proper  force  and  authority  of  a  general  law. 

"It  may  be  fit  there  should  be  some  rule,  and  it  might  be  either 
the  rule  of  immediate  possession,  or  the  rule  of  pernoctation  and 
twenty-four  hours  possession;  or  it  might  be  the  rule  of  bringing 
infra  prasidia;  or  it  might  be  a  rule  requiring  an  actual  sentence 
of  condemnation.  Either  of  these  rules  might  be  sufficient  for  gen- 
eral practical  convenience,  although  hi  theory  perhaps  one  might 
appear  more  just  than  another.  But  the  fact  is,  there  is  no  such  rule 
of  practice;  nations  concur  in  principle  indeed,  so  far  as  regards 
firm  and  secure  possession.  But  their  rules  of  evidence  respecting 
the  possession  are  so  discordant,  and  lead  to  such  opposite  con- 
clusions, that  the  mere  unity  of  principle  forms  no  uniform  rule  to 
regulate  the  general  practice.  But  were  the  public  opinion  of  Euro- 
pean states  more  distinctly  agreed,  on  any  principle,  as  fit  to  form 
the  rule  of  the  law  of  nations  on  this  subject,  it  by  no  means 
follows  that  any  one  nation  would  lie  under  an  obligation  to 
observe  it. 

"That  obligation  could  arise  only  from  a  reciprocity  of  practice 
in  other  nations;  for  from  the  very  circumstance  of  the  prevalence 
of  a  different  rule  among  other  nations,  it  would  become  not  only 
lawful,  but  necessary,  to  that  one  nation  to  pursue  a  different 
conduct:  for  instance,  were  there  a  rule  prevailing  among  other 
nations,  that  the  immediate  possession  and  the  very  act  of  capture 
should  divest  the  property  from  the  first  owner,  it  would  be  ab- 


3  96          RECIPROCITY  AS  A  BASIS  OF  TREATMENT 

surd  in  Great  Britain  to  act  towards  them  on  a  more  extended 
principle;  and  to  lay  it  down  as  a  general  rule,  that  a  bringing  infra 
pr&sidia,  though  probably  the  true  rule,  should  in  all  cases  of 
recapture  be  deemed  necessary  to  divest  the  original  proprietor  of 
his  right;  for  the  effect  of  adhering  to  such  a  rule  would  be  gross 
injustice  to  British  subjects;  and  a  rule,  from  which  gross  injustice 
must  ensue  in  practice,  can  never  be  the  true  rule  of  law  between 
independent  nations;  for  it  cannot  be  supposed  to  be  the  duty  of 
any  country  to  make  itself  a  martyr  to  speculative  propriety,  were 
that  established  on  clearer  demonstration  than  such  questions  will 
generally  admit.  Where  mere  abstract  propriety  therefore  is  on  one 
side,  and  real  practical  justice  on  the  other,  the  rule  of  substantial 
justice  must  be  held  to  be  the  true  rule  of  the  law  of  nations  be- 
tween independent  states. 

"If  I  am  asked,  under  the  known  diversity  of  practice  on  this 
subject,  What  is  the  proper  rule  for  a  state  to  apply  to  the  recap- 
tured property  of  its  allies?  I  should  answer,  that  the  liberal  and 
rational  proceeding  would  be,  to  apply  in  the  first  instance  the 
rule  of  that  country  to  which  the  recaptured  property  belongs.  I 
admit  the  practice  of  nations  is  not  so;  but  I  think  such  a  rule 
would  be  both  liberal  and  just:  to  the  recaptured,  it  presents  his 
own  consent,  bound  up  in  the  legislative  wisdom  of  his  own 
country;  to  the  recaptor,  it  cannot  be  considered  as  injurious. 
Where  the  rule  of  the  recaptured  would  condemn,  whilst  the  rule 
of  the  recaptor  prevailing  amongst  his  own  countrymen  would 
restore,  it  brings  an  obvious  advantage;  and  even  in  the  case  of 
immediate  restitution,  under  the  rules  of  the  recaptured,  the  re- 
capturing country  would  rest  secure  in  the  reliance  of  receiving 
reciprocal  justice  in  its  turn. 

"It  may  be  said,  What  if  this  reliance  should  be  disappointed? 
Redress  must  then  be  sought  from  retaliation;  which,  in  the  dis- 
putes of  independent  states,  is  not  to  be  considered  as  vindictive 
retaliation,  but  as  the  just  and  equal  measure  of  civil  retribution: 
this  will  be  their  ultimate  security,  and  it  is  a  security  sufficient 
to  warrant  the  trust.  For  the  transactions  of  states  cannot  be 
balanced  by  minute  arithmetic;  something  must  on  all  occasions 
be  hazarded  on  just  and  liberal  presumptions. 

' '  Or  it  may  be  asked,  What  if  there  is  no  rule  in  the  country  of  the 


THE  SANTA  CRUZ  397 

recaptured?  I  answer,  first,  this  is  scarcely  to  be  supposed;  there 
may  be  no  ordinance,  no  prize  acts  immediately  applying  to  re- 
capture; but  there  is  a  law  of  habit,  a  law  of  usage,  a  standing  and 
known  principle  on  the  subject,  in  all  civilized  commercial  coun- 
tries: it  is  the  common  practice  of  European  states,  in  every  war, 
to  issue  proclamations  and  edicts  on  the  subject  of  prize;  but  till 
they  appear,  Courts  of  Admiralty  have  a  law  and  usage  on  which 
they  proceed,  from  habit  and  ancient  practice,  as  regularly  as  they 
afterwards  conform  to  the  express  regulations  of  their  prize  acts. 
But  secondly,  if  there  should  exist  a  country  in  which  no  rule  pre- 
vails, —  the  recapturing  country  must  then  of  necessity  apply  its 
own  rule,  and  rest  on  the  presumption,  that  that  rule  will  be 
adopted  and  administered  in  the  future  practice  of  its  allies. 

"Again,  it  is  said  that  a  country  applying  to  other  countries 
then*  own  respective  rules  will  have  a  practice  discordant  and  ir- 
regular. It  may  be  so;  but  it  will  be  a  discordance  proceeding  from 
the  most  exact  uniformity  of  principle;  it  will  be  idem  per  diver sa. 
It  is  asked  also,  Will  you  adopt  the  rules  of  Tunis  and  Algiers?  If 
you  take  the  people  of  Tunis  and  Algiers  for  your  allies,  undoubt- 
edly you  must;  you  must  act  towards  them  on  the  same  rules  of 
relative  justice  on  which  you  conduct  yourselves  towards  other 
nations.  And  upon  the  whole  of  these  objections,  it  is  to  be  ob- 
served, that  a  rule  may  bear  marks  of  apparent  inconsistency,  and 
nevertheless  contain  much  relative  fitness  and  propriety:  a  regula- 
tion may  be  extremely  unfit  to  be  made,  which  yet  shall  be  ex- 
tremely fit,  and  shall  indeed  be  the  only  fit  rule,  to  be  observed 
towards  other  parties  who  have  originally  established  it  for 
themselves. 

"So  much  it  might  be  necessary  to  explain  myself  on  the  mere 
question  of  propriety;  but  it  is  much  more  material  to  consider 
what  is  the  actual  rule  of  the  maritime  law  of  England  on  this  sub- 
ject. I  understand  it  to  be  clearly  this:  that  the  maritime  law  of 
England  having  adopted  a  most  liberal  rule  of  restitution  on  sal- 
vage, with  respect  to  the  recaptured  property  of  its  own  subjects, 
gives  the  benefit  of  that  rule  to  its  allies,  till  it  appears  that  they 
act  towards  British  property  on  a  less  liberal  principle:  in  such  a 
case  it  adopts  their  rule,  and  treats  them  according  to  their  own 
measure  of  justice.  This  I  consider  to  be  the  true  statement  of  the 


398  RECIPROCITY  AS  A  BASIS  OF  TREATMENT 

law  of  England  on  this  subject:  it  was  clearly  so  recognized  in  the 
case  of  the  San  lago,  a  case  which  was  not,  as  it  has  been  insinu- 
ated, decided  on  special  circumstances  nor  on  novel  principles, 
but  on  principles  of  established  use  and  authority  in  the  jurispru- 
dence of  this  country.  In  the  discussion  of  that  case,  much  atten- 
tion was  paid  to  an  opinion  found  amongst  the  manuscript  collec- 
tions of  a  very  experienced  practitioner  in  this  profession  (Sir 
E.  Simson),  which  records  the  practice  and  the  rule  as  it  was  un- 
derstood to  prevail  in  his  time.  'The  rule  is:  that  England  re- 
stores, on  salvage,  to  its  allies;  but  if  instances  can  be  given  of 
British  property  retaken  by  them  and  condemned  as  prize,  the 
Court  of  Admiralty  will  determine  their  cases  according  to  their 
own  rule.' 

"I  conceive  this  principle  of  reciprocity  is  by  no  means  peculiar 
to  cases  of  recapture;  it  is  found  also  to  operate  in  other  cases  of 
maritime  law:  at  the  breaking  out  of  a  war  it  is  the  constant  prac- 
tice of  this  country  to  condemn  property  seized  before  the  war,  it 
the  enemy  condemns,  and  to  restore  if  the  enemy  restores. 

"  It  is  a  principle  sanctioned  by  that  great  foundation  of  the  law 
of  England,  Magna  Charta  itself;  which  prescribes,  that  at  the 
commencement  of  a  war  the  enemy's  merchants  shall  be  kept  and 
treated  as  our  own  merchants  are  treated  in  their  country. 

"In  recaptures,  it  is  observable,  the  liberality  of  this  country 
outsteps  its  caution;  it  restores  on  salvage  without  inquiry,  till  it 
appears  that  the  ally  pursues  a  different  rule.  It  may  be  said,  there 
may  be  inequality  and  hazard  in  this  prompt  liberality,  and  we  may 
restore  while  the  ally  condemns,  and  so  the  fact  has  been;  for  it  is 
not  to  be  denied  that  before  the  case  of  the  San  lago  had  intro- 
duced a  more  accurate  knowledge  of  the  Spanish  law,  restitutions 
of  Spanish  property  on  recapture  had  passed  as  of  course;  the 
more  accurate  rule  however  is  that  which  I  have  laid  down. 

"  In  the  present  state  of  hostility  (if  so  it  may  be  called)  between 
America  and  France,  the  practice  of  this  court  restores  American 
property  on  its  own  rule,  without  inquiring  into  the  practice  of 
America.  It  acts  on  the  same  principle  towards  Danes,  and  Swedes, 
and  Hamburghers,  in  the  ambiguous  state  in  which  the  rapine  of 
France  has  placed  the  subjects  of  these  governments.  Towards 
Portugal  then  undoubtedly  a  less  liberal  treatment  would  not  be 


THE  SANTA  CRUZ  399 

observed;  connected  by  long  alliance,  by  ancient  treaties,  by  mu- 
tual interests  and  common  dangers,  if  Portugal  forfeits  the  benefit 
of  a  rule  which  has  been  before  observed  as  a  general  rule,  it  can 
be  only  on  this  ground  that  the  courts  of  that  country  have  applied 
a  different  rule  to  the  property  of  British  subjects.  The  ques- 
tion then  for  the  court  to  determine  will  be  simply  this:  Has  Por- 
tugal applied  a  different  rule  to  British  property  taken  by  the 
enemy,  and  coming  out  of  their  hands  into  the  possession  of  Por- 
tuguese subjects?" 

[After  discussing  the  bearing  upon  the  case  of  conventional  re- 
lations between  the  two  countries  and  discussing  the  value  of  the 
evidence  submitted  and  upon  whom  rested  the  burden  of  the  proof, 
the  eminent  judge  states:] 

"I  consider  myself,  therefore,  justified  to  conclude,  that  the 
law  of  Portugal  established  twenty-four  hours'  possession  by  the 
enemy  to  be  a  legal  divestment  of  the  property  of  the  original 
owner;  and  also,  that  it  would  have  applied  the  same  rule  to  the 
property  of  allies. 

"But  I  acknowledge  it  is  not  sufficient  to  say  such  a  rule 
would  have  been  applied.  It  is  also  necessary  to  show  that  there 
have  been  actual  proceedings  under  it;  and  for  that  purpose  two 
cases  have  been  produced:  the  cases  of  The  Anne  and  of  The 
Endeavour." 

[Proceeding  then  to  examine  the  course  taken  by  Portugal  in 
these  two  cases,  Sir  William  Scott  gives  as  his  opinion  that  "un- 
less they  could  be  overthrown  they  would  sufficiently  establish 
this  fact:  that  it  was  the  practice  of  the  courts  of  Portugal,  either 
under  ancient  ordinances,  or  under  a  silent,  but  prevailing  usage, 
or  under  some  recent  edict,  to  confiscate  the  property  of  allies 
coming  into  the  possession  of  Portuguese  subjects  from  the  hands 
of  the  enemy."  He  concludes  his  opinion  in  the  following  words:] 

"  Such  are  the  observations  which  I  think  myself  justified  in  mak- 
ing on  the  proceedings  in  these  two  cases;  and  after  the  general 
view  which  I  have  taken  of  the  whole  of  this  subject,  it  may  be  un- 
necessary to  dwell  more  particularly  on  the  minute  parts  of  the 
several  papers.  It  is,  I  think,  clearly  proved,  that  before  the  ordi- 
nance of  May  1797,  the  courts  of  Portugal  considered  British  prop- 
erty coming  out  of  the  hands  of  the  enemy  as  subject  to  confisca- 


400          RECIPROCITY  AS  A  BASIS  OF  TREATMENT 

tion;  in  two  instances  such  property  was  actually  confiscated, 
not  by  remote  and  inferior  jurisdictions,  but  in  their  highest 
courts,  in  the  capital  of  the  empire,  and  under  the  direction  of  the 
state.  The  ordinance  of  1797  cannot  be  applicable  to  preexisting 
cases;  I  must  determine  all  cases,  as  if  they  had  come  before  me  at 
the  time  of  capture.  The  two  former  cases,  therefore,  of  this  class 
can  receive  no  protection  from  this  ordinance. 

"Looking  then  to  the  conduct  which  Portugal  had  observed 
towards  British  property,  and  conceiving  myself  bound  by  the 
general  law  of  this  country,  and  more  particularly  by  the  authority 
of  the  case  of  the  San  lago,  to  proceed  on  strict  principles  of  reci- 
procity, I  have  no  hesitation  in  pronouncing  the  first  two  cases 
subject  to  confiscation. 

"I  now  come  to  the  consideration  of  the  subsequent  cases.  It 
has  already  been  laid  down,  that  the  law  of  England  restores  on 
salvage,  unless  it  is  forced  out  of  its  natural  course  by  the  practice 
of  its  allies.  In  the  preceding  cases  it  has  been  reluctantly  so 
diverted  from  its  free  course;  but  in  May  1797,  it  appears  Portu- 
gal renounced  the  harsher  principles,  and  adopted  a  more  liberal 
rule;  upon  what  ground  then  can  it  be  contended,  that  this  coun- 
try must,  in  regard  to  those  cases  which  have  occurred  subsequent 
to  this  ordinance,  follow  the  harsh  and  antiquated,  in  preference 
to  the  new  and  more  lenient  rule?  It  is  said  Portugal  is  not  at  lib- 
erty to  make  such  an  alteration  in  time  of  war,  and  that  those  who 
have  once  established  a  rule,  must  abide  the  consequences  of  it; 
but  I  confess  I  see  no  one  reason  on  which  this  exercise  of  legislation 
can  be  denied  to  an  independent  state. 

"It  is  said,  Portugal  will  then  legislate  for  this  country;  and  so 
must  every  country  in  some  degree  legislate  for  us,  whilst  Great 
Britain  professes  to  act  upon  the  old  principle,  and  adopt  the  law 
of  its  ally.  In  peace  it  is  allowed  such  an  alteration  might  be  made, 
and  why  not  in  a  time  of  war?  There  are  no  depending  interests 
to  be  affected  by  it;  it  was  an  alteration  as  harmless  to  the  world, 
as  if  it  had  been  made  in  times  of  most  profound  peace.  But  it  is 
said,  the  law  is  not  even  now  established  on  equal  terms  of  reci- 
procity towards  this  country.  The  salvage  which  Portugal  has 
decreed  is  one-fifth,  whilst  the  law  of  this  country  restores  on  pay- 
ment of  a  sixth  only.  Perhaps  a  rule  more  closely  concurring  with 


THE  CASE  OF  BINZEGGER  401 

our  own  might  have  been  more  convenient;  but  the  difference  is 
not  sufficient  to  justify  this  country  in  refusing  Portuguese  sub- 
jects the  benefit  of  their  alteration.  In  professing  to  act  on  the  law 
of  our  ally,  we  must  do  it  for  better  and  for  worse. 

"I  therefore  restore  the  several  vessels  that  have  been  taken 
since  the  ordinance  of  May  1797,  on  the  salvage  which  Portugal 
has  established,  a  salvage  of  one-eighth  to  ships  of  war,  and  one- 
fifth  to  privateers. 

"In  the  condemned  cases,  I  order  the  expenses  of  the  claimants 
to  be  defrayed  out  of  the  proceeds." 

(Extracted  and  condensed  from  Robinson:  Reports  of  Cases 
argued  and  determined  in  the  High  Court  of  Admiralty,  vol.  I, 
pp.  42-67.) 


CATTLE  ON  THE  MEXICAN  BORDER  (1896) 

THE  Mexican  Minister  at  Washington  stated  in  a  note  of  No- 
vember 2,  1896,  that  the  Mexican  Treasury  Department  had 
given  instructions  to  the  Mexican  custom  houses  at  Nogales, 
Ciudad  Juarez,  and  Las  Palmas  to  permit  the  cattlemen  of  the 
United  States  to  cross  into  Mexico  to  aid  in  collecting  their  herds 
under  the  same  conditions  that  the  custom  houses  of  the  United 
States  exacted  from  Mexican  cattlemen  under  similar  circum- 
stances, thus  establishing  a  reciprocity  of  practice  of  both  gov- 
ernments in  the  matter. 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  iv, 

P-  4I7-)  

§48.  COMITY 


THE  CASE  OF  BINZEGGER  (1884) 

NOVEMBER  22,  1884,  a  Swiss  newspaper  published  a  statement 
that  the  authorities  of  the  Canton  of  Zug  had  granted  the  petition 
for  pardon  of  one  Binzegger,  who  was  sentenced  in  1867  to  life 
imprisonment  for  incendiarism,  on  condition  of  his  promised  emi- 
gration to  America.  The  American  Legation  at  Berne  asked  the 

SANTA  BARBARA  STATE  COLLEGE  LIBRA*! 


402  COMITY 

Federal  Council  to  call  the  attention  of  the  cantonal  authorities 
to  the  laws  of  the  United  States  which  prohibited  the  landing  of 
such  persons.  The  action  of  the  legation  was  approved  by  Mr. 
Frelinghuysen,  with  the  statement  that  it  was  presumed  that  the 
Federal  Council  would  prevent  the  consummation  of  the  design 
to  land  a  criminal  in  the  United  States,  "as  a  violation  of  the 
comity,  which  should  obtain  between  the  two  governments." 
The  Federal  Council,  in  reply  to  the  legation,  stated  that  Binzeg- 
ger  had  been  pardoned  by  the  cantonal  authorities  on  the  ground 
of  his  good  conduct  during  imprisonment;  that  he  had  been  par- 
doned without  any  restrictive  condition,  and  that  he  had  mani- 
fested no  intention  of  emigrating  to  the  United  States,  but  in- 
tended to  go  to  Buenos  Ayres. 

(Taken  textually  from  Moore:  Digest  of  International  Law,  vol. 
IV,  p.  147.) 

THE  CASE  OF  JACOB   FRANCK  (1896) 

IN  February,  1896,  a  discussion  took  place  between  the  United 
States  and  Germany  as  to  one  Jacob  Franck,  a  seaman  on  a  Ger- 
man steamer,  who  had  been  discharged  from  that  vessel  or  had 
deserted  from  it  in  December,  1895,  at  Savannah,  Georgia,  and 
had  become  a  public  charge  by  reason  of  insanity.  The  German 
Ambassador  stated  that  no  provision  for  his  return  was  made  by 
the  imperial  laws.  It  seems  there  was  a  question  as  to  his  citizen- 
ship. By  the  laws  and  regulations  of  the  United  States,  provision 
is  made  for  the  relief  of  'destitute  or  disabled  American  seamen  in 
foreign  lands  by  the  consular  representatives  of  [the  United  States 
where  such  seamen  are  found  to  be  citizens  of  the  United  States, 
even  though  they  may  have  deserted. 

The  case  was  brought  to  the  attention  of  the  Secretary  of  the 
Treasury,  who  held  that  Franck  was  not  an  alien  immigrant  and 
could  not  be  returned  to  Germany  under  the  immigration  laws,  it 
being  impossible  to  eliminate  from  the  case  his  character  as  a  de- 
serting seaman.  In  this  relation  the  attention  of  the  German  Am- 
bassador was  called  to  article  14  of  the  treaty  between  the  United 
States  and  the  German  Empire  of  December  u,  1871,  in  relation 
to  the  delivery  of  deserters,  and  it  was  suggested  that  although  the 


THE  EXTRADITION  OF  NALBANDIAN  403 

article  was  permissive  in  form,  it  was  framed  on  the  assumption 
that  each  contracting  party  would  recover  its  deserters  and  not 
permit  them  to  become  a  charge  upon  a  foreign  community,  and 
that  the  execution  of  it  in  such  a  case  was  "an  international  obli- 
gation of  comity  as  well  as  a  duty  ofj  humanity  to  the  sufferer. " 
The  German  Ambassador  subsequently  stated  that  the  Imperial 
Government  was  unable  to  regard  the  article  in  question  as  im- 
posing any  obligation  on  German  Consuls  to  take  charge  of  sea- 
men who  were  deserters.  He  also  stated  that  three  years  pre- 
viously the  United  States  Legation  at  Berlin  "expressly  informed 
the  Foreign  Office  that  it  declined,  on  principle,  to  send  home  at 
the  expense  of  the  United  States  destitute  Americans  who  were 
in  German  insane  asylums." 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  m,  pp. 
807-09.) 

§49.  EXTRADITION 


THE  EXTRADITION  OF  NALBANDIAN  (1910) 

[THE  following  selection  of  the  papers  given  in  the  Foreign  Rela- 
tions of  the  United  States  indicates  the  procedure  hi  this  interesting 
case:] 

Charge  Harvey  to  the  Secretary  of  State 

[Telegram  —  Paraphrase] 

AMERICAN  LEGATION, 
Bucharest,  February  5, 


Mr.  Harvey  says  that  Vahan  Nalbandian,  who  is  wanted  by  the 
police  of  Lynn,  Massachusetts,  for  murder,  is  held  by  the  Bulga- 
rian authorities,  and  that  if  extradition  papers  are  sent  at  once  the 
prisoner  will  be  surrendered  upon  their  presentation. 

Chargt  Harvey  to  the  Secretary  of  State 

AMERICAN  LEGATION, 
(No.  52,  Bulgarian  series.)  Bucharest,  February  5,  1910. 

Sir:  I  have  the  honor  to  report  on  January  8  I  received  from  Mr. 
Thomas  M.  Burckes,  chief  of  police  of  Lynn,  Massachusetts,  a 


404  EXTRADITION 

communication  stating  that  one  Vahan  Nalbandian  had  been  in- 
dicted by  the  grand  jury  of  Essex  County  in  that  state  for  the 
murder  of  one  Minas  K.  Monigan,  and  that  the  said  Nalbandian 
was  supposed  to  be  at  Silistra,  Bulgaria.  He  enclosed  a  circular 
police  description,  with  pictures  of  the  accused,  and  asked  that 
the  Bulgarian  authorities  be  communicated  with  and  the  man  ap- 
prehended and  placed  under  arrest  to  await  the  receipt  of  extradi- 
tion papers  from  his  government. 

I  immediately  went  to  the  Bulgarian  Legation  in  this  city  and 
communicated  to  them  the  request  as  above  stated,  and  gave  them 
the  circular  and  picture  of  the  accused.  Yesterday  I  received  a 
letter  from  the  state's  attorney  (procureur  du  tribunal),  of  Silistra, 
Theodore  Maneff,  stating  that  Nalbandian  has  been  arrested  and 
had  acknowledged  that  he  was  the  person  wanted  by  the  Lynn 
police.  After  consultation  with  the  Bulgarian  Legation  as  to 
whether  then*  government  would  permit  the  extradition  of  the 
accused,  there  being  no  treaty  or  convention  of  extradition  between 
the  two  countries,  I  telegraphed  the  Bulgarian  Foreign  Office, 
stating  that  Nalbandian  was  wanted  by  the  American  police  for  a 
murder  committed  at  Lynn,  and  that  he  had  been  arrested  in  Bul- 
garia and  was  now  being  held  on  my  demand,  and  asked  whether 
the  Bulgarian  Government  would  permit  his  extradition  upon  the 
presentation  of  the  necessary  papers,  and  whether  they  would 
hold  the  prisoner  until  such  papers  should  arrive. 

In  response,  I  received  a  telegram  last  night  from  the  Bulgarian 
Government  stating  that  they  had  instructed  their  legation  here 
how  to  act  in  the  matter.  This  morning  I  received  a  message  by 
telephone  from  the  Bulgarian  Legation  that  their  government 
would  surrender  the  accused  on  the  presentation  of  proper  extra- 
dition papers  if  the  same  were  sent  without  delay.  I  immediately 
telegraphed  the  Department  that  the  accused  was  wanted  by  the 
Lynn  police  and  that  the  Bulgarian  authorities  would  surrender 
him  on  presentation  of  the  proper  extradition  papers. 

I  have,  etc., 

ROLAND  B.  HARVEY. 


THE  EXTRADITION  OF  NALBANDIAN  405 

[Enclosure  —  Translation] 

The  Royal  Bulgarian  Legation  to  Charge  Harvey 

BUCHAREST,  January  23,  igjo. 

In  reply  to  the  verbal  requests  made  by  M.  le  Charg6  d' Affaires 
of  the  United  States  in  regard  to  the  search  for  and  arrest  of  one 
Vahan  Nalbandian,  the  Royal  Legation  of  Bulgaria  has  the  honor 
to  inform  the  Legation  of  the  United  States  of  America  that  ac- 
cording to  a  communication  from  the  Royal  Ministry  for  Foreign 
Affairs  the  individual  in  question  has  just  been  arrested  by  the 
authorities  of  Silistra. 

In  bringing  the  foregoing  to  the  knowledge  of  the  honorable 
Legation  of  the  United  States  the  Royal  Legation  of  Bulgaria  has 
the  honor  to  beg  it  to  take  the  necessary  steps  at  its  earliest  con- 
venience and  request  the  extradition  of  the  said  V.  Nalbandian  of 
the  Royal  Government,  annexing  the  necessary  papers. 

The  Acting  Secretary  of  State  to  Chargi  Harvey 

DEPARTMENT  OF  STATE, 
[No.  30.]  Washington,  February  19,  1910. 

Sir:  I  enclose  the  extradition  papers  in  the  case  of  Vahan  Nal- 
bandian, alias  Frank  Jones,  whose  extradition  from  Bulgaria  is  de- 
sired by  the  State  of  Massachusetts.  You  will  transmit  the  papers 
to  the  Foreign  Office  and  request,  as  an  act  of  grace,  the  surrender 
of  Nalbandian  upon  the  charge  of  murder.  You  will  at  the  same 
time  formally  state  in  your  note  of  request  that  owing  to  the  limi- 
tations placed  upon  the  power  of  the  executive  in  this  country  it 
will  not  be  possible  for  this  government,  in  the  absence  of  a  treaty 
of  extradition,  to  reciprocate  this  considerate  action  of  the  Bulga- 
rian Government.  You  will  also  express  the  high  appreciation  of 
this  government  for  the  courtesy  extended  by  the  Bulgarian  au- 
thorities in  expressing  their  willingness  to  surrender  this  man. 

I  am,  etc., 

HUNTINGTON  WlLSON. 


406  EXTRADITION 

Chargt  Harvey  to  the  Secretary  of  State 

AMERICAN  LEGATION, 
[No.  9,  Bulgarian  series.]  Bucharest,  April  7,  igzo. 

Sir:  Referring  to  the  case  of  Vahan  Nalbandian,  whose  extradi- 
tion from  Bulgaria  was  asked  for  by  the  police  authorities  of  Lynn, 
Massachusetts,  on  the  charge  of  murder  committed  in  that  city,  I 
have  the  honor  to  inform  the  Department  that  after  the  receipt 
of  the  Department's  instruction,  Bulgarian  series  No.  30,  of  Feb- 
ruary 19,  and  upon  the  arrival  of  Stacey  R.  Burckes,  the  special 
agent  of  the  President,  named  in  the  warrant  accompanying  the 
extradition  papers  enclosed  in  the  said  instruction  No.  30  (Mar.  13), 
I  prepared,  with  the  aid  and  advice  of  Mr.  Carter,  a  note  to  Gen- 
eral Paprikoff,  the  Minister  for  Foreign  Affairs  of  Bulgaria,  a  copy 
of  which  I  herewith  enclose,  formally  asking  for  the  extradition 
of  the  said  Nalbandian  as  an  act  of  grace  on  the  part  of  the  Bul- 
garian Government,  and  again  informing  them,  as  I  had  previ- 
ously done  in  the  case  of  the  Bulgarian  Legation  in  this  city,  that, 
owing  to  the  limitations  placed  by  the  Constitution  of  the  United 
States  upon  the  executive,  my  government  would  not  be  able  to 
reciprocate  under  like  circumstances. 

As  neither  Mr.  Burckes  nor  Mr.  Wells,  who  accompanied  him, 
could  speak  any  language  except  English  and  were  entirely  unfa- 
miliar with  the  necessary  formalities  in  these  countries,  and  as  I 
was  about  to  proceed  to  Sofia  anyhow,  Mr.  Carter  and  myself  con- 
sidered it  necessary  for  me  to  proceed  to  Sofia  with  the  agents 
above  referred  to.  We  arrived  at  Sofia  in  the  evening  of  March  15, 
and  I  obtained  an  audience  and  presented  my  note  to  General 
Paprikoff  in  person,  on  the  morning  of  March  17.  I  went  over  the 
matter  fully  with  him  and  with  Mr.  Radeff,  the  chief  of  the  politi- 
cal section,  who  had  the  matter  in  charge,  and  reiterated  the  im- 
possibility of  my  government  to  reciprocate.  General  Paprikoff 
at  once  stated  that  he  thought  there  would  be  no  difficulty  about 
the  matter,  but  that,  as  it  would  have  to  be  referred  to  the  Minis- 
ter of  Justice,  and  that  as  some  if  not  all  the  papers  would  have  to 
be  translated  into  Bulgarian,  he  would  not  be  able  to  give  me  defi- 
nite word  before  Saturday,  March  19.  On  that  day  I  received  an 
informal  communication  that  the  extradition  would  be  granted  and 


THE  EXTRADITION  OF  NALBANDIAN  407 

that  the  formal  papers  would  be  delivered  to  me  on  Monday.  I  im- 
mediately communicated  to  Mr.  Carter  the  information  received, 
and  steps  were  at  once  taken  at  Bucharest  to  arrange  for  his  tran- 
sit across  Roumania  and  Hungary  to  Fiume,  as  that  route  seemed 
to  be  the  least  troublesome  and  most  expeditious,  there  being  a 
Cunard  Line  steamer,  the  Ultonia,  sailing  from  that  port  on  April 
2.  On  Monday  I  received  a  formal  notice  from  the  Bulgarian  Gov- 
ernment that  the  extradition  would  be  granted.  The  Bulgarian 
Government  also  informed  me  that  it  would  assume  all  the  expenses 
incident  to  the  retention  of  the  prisoner  while  in  Bulgaria,  as  well 
as  his  transportation  to  whatever  port  or  city  on  their  frontier  that 
we  might  designate  for  his  delivery  to  our  agents.  It  also  refused 
to  allow  me  to  pay  for  the  translation  of  the  papers,  or,  in  fact,  to 
bear  any  part  of  the  expenses  incurred  in  the  whole  matter  while 
in  Bulgaria.  The  whole  attitude  of  the  Bulgarian  authorities  was 
most  courteous  and  obliging,  and  I  took  pains  to  assure  them  of  the 
great  appreciation  of  my  government  and  the  legation. 
I  have,  etc., 

ROLAND  B.  HARVEY. 

Minister  Carter  to  the  Secretary  of  State 

[Extract] 

AMERICAN  LEGATION, 
[No.  63,  Roumanian  series.]  Bucharest,  April  g,  igio. 

Sir:  With  reference  to  the  Department's  No.  30,  Bulgarian 
series,  of  February  19  (File  No.  21641/7),  relating  to  the  extradi- 
tion of  Vahan  Nalbandian,  the  statement  of  the  case  in  Mr.  Har- 
vey's No.  9,  Bulgarian  series,  of  the  yth  instant,  is  so  full  that  I 
have  little  to  add  for  the  information  of  the  Department. 

During  Mr.  Harvey's  absence  at  Sofia  I  arranged  with  the 
Austrian  Legation  here  for  the  safe-conduct  of  the  United  States 
agents  with  their  prisoner  across  Austrian  territory  to  Fiume,  and 
with  the  Foreign  Office  at  Bucharest  for  their  transit  by  way  of 
Roumania. 

At  the  last  moment,  however,  the  Minister  for  Foreign  Affairs 
informed  me  that  permission  for  the  transit  of  the  prisoner  could 
not  be  granted.  This  refusal  was  based  upon  the  grounds  that 
having  no  extradition  treaty  with  us,  Roumanian  law  demanded 


408  EXTRADITION 

the  same  process  for  the  transit  as  if  it  were  a  question  of  a  case 
of  extradition,  and,  besides,  that  the  prisoner  being  extradited  on 
the  charge  of  murder,  for  which  the  penalty  in  the  United  States 
is  death,  the  transit  could  not  have  been  effected  in  any  case  unless 
our  government  promised  not  to  exact  the  death  penalty. 

That  the  law  of  the  country  did  not  permit  it  I  could  not  ques- 
tion, but  I  did  express  my  regret  that  I  should  not  have  been  so 
informed  either  on  the  day  I  made  the  request  or  at  least  in  suf- 
ficient time  during  the  ten  days  thereafter  to  enable  me  to  change 
the  arrangement. 

However,  by  the  great  courtesy  and  prompt  action  of  the  officials 
of  the  Bulgarian,  Servian,  and  Austrian  Governments,  the  arrange- 
ments were  speedily  altered  so  that  the  agents  with  their  prisoner 
were  thereby  enabled  to  reach  Fiume  the  very  morning  of  the  day 
their  ship  sailed. 

I  may  mention  that  at  the  request  of  the  agents  I  sent  Mr. 
Bancroft,  the  clerk  of  this  legation,  with  them  to  help  them  on 
their  way.  His  presence  of  mind  at  the  Austrian  frontier,  owing  to 
our  late  change  of  plans  (the  instructions  to  the  police  had  not 
arrived),  made  it  possible  for  the  agents  to  proceed  by  the  one  train 
which  got  them  to  their  destination  in  time. 

I  have,  etc., 

JOHN  RIDGELY  CARTER. 

(Foreign  Relations  of  the  United  States,  1910,  pp.  122-28.) 


THE  CHARLTON  EXTRADITION  CASE 

The  Supreme  Court  of  the  United  States,  1913 

THIS  was  an  appeal  to  the  Supreme  Court  of  the  United  States 
from  the  judgment  of  the  Circuit  Court  of  the  United  States  for 
the  District  of  New  Jersey  dismissing  a  petition  for  a  writ  of 
habeas  corpus  on  behalf  of  one  Porter  Charlton,  held  under  war- 
rant for  extradition  to  Italy  as  a  fugitive  from  justice. 

The  petitioner  was  an  American  citizen  who,  on  his  own  con- 
fession, had  murdered  his  wife  at  Moltrasio,  Italy,  and  had  es- 
caped to  New  Jersey.  On  complaint  duly  made  by  the  Italian 
Vice-Consul,  extradition  proceedings  were  instituted  in  accordance 


THE  CHARLTON  EXTRADITION  CASE  409 

with  the  treaty  between  the  United  States  and  Italy,  article  i  of 
which  is  as  follows: 

"The  Government  of  the  United  States  and  the  Government  of 
Italy  mutually  agree  to  deliver  up  persons  who,  having  been  con- 
victed of  or  charged  with  the  crimes  specified  in  the  following 
article,  committed  within  the  jurisdiction  of  one  of  the  contract- 
ing parties,  shall  seek  an  asylum  or  be  found  within  the  territories 
of  the  other;  Provided,  that  this  shall  only  be  done  upon  such 
evidence  of  criminality  as,  according  to  the  laws  of  the  place 
where  the  fugitive  or  person  so  charged  shall  be  found,  would 
justify  his  or  her  apprehension  and  commitment  for  trial,  if  the 
crime  had  been  there  committed."  (Malloy:  Treaties,  vol.  I, 
p.  967.) 

A  warrant  having  duly  issued  for  Charlton's  arrest,  the  magis- 
trate found,  from  the  evidence  submitted,  probable  cause  for  the 
charge  of  murder,  and  committed  Charlton  to  await  a  warrant 
from  the  Secretary  of  State  authorizing  his  extradition  to  Italy. 
The  execution  of  the  warrant  was  stayed  by  habeas  corpus  pro- 
ceedings and  the  appeal  taken  to  the  Supreme  Court. 

Three  main  objections  were  urged  against  the  extradition  of 
Charlton: 

(1)  That  evidence  of  the  insanity  of  the  accused  had  been 
offered  and  excluded. 

(2)  That  under  the  treaty  with  Italy  neither  party  is  bound  to 
deliver  up  its  own  citizens:  i.e.,  the  term  "persons"  does 
not  include  citizens  of  the  asylum  country. 

(3)  That  inasmuch  as  Italy  forbids  extradition  of  her  own  citi- 
zens, the  treaty  lacks  mutuality  and,  as  regards  a  case  like 
that  of  Charlton,  has  been  abrogated. 

i.  It  was  contended  for  the  appellant  that  by  excluding  evi- 
dence as  to  his  insanity,  the  magistrate  had  failed  to  give  effect  to 
the  provision  of  the  Act  of  1882  (22  Statutes,  215,  Dec.  3) requir- 
ing that  the  defendant's  witnesses  shall  be  heard.  But  the  court 
held  that  the  proceeding  before  the  magistrate  is  not  a  trial ;  "  the 
issue  is  confined  to  the  single  question  of  whether  the  evidence  for 
the  state  makes  a  prima  facie  case  of  guilt  sufficient  to  make  it 
proper  to  hold  the  party  for  trial."  Hence,  in  the  opinion  of  the 


410  EXTRADITION 

court,  the  examining  magistrate  did  not  act  in  excess  of  his  author- 
ity. "If  the  evidence  was  only  for  the  purpose  of  showing  present 
insanity  by  reason  of  which  the  accused  was  not  capable  of  defend- 
ing the  charge  of  crime,  it  is  an  objection  which  should  be  taken 
before  or  at  the  time  of  his  trial  for  the  crime,  and  heard  by  the 
court  having  jurisdiction  of  the  crime.  If  it  was  offered  to  show 
insanity  at  the  time  of  the  commission  of  the  crime,  it  was  obvi- 
ously a  defense  which  should  be  heard  at  the  time  of  his  trial,  or 
by  a  preliminary  hearing  in  the  jurisdiction  of  the  crime,  if  so 
provided  for  by  its  laws." 

2.  The  second  objection  turned  upon  the  interpretation  of  the 
word  "persons"  in  the  treaty  with  Italy.  Does  it  include  citizens 
of  the  asylum  country?  Counsel  for  the  appellant  maintained  that 
it  does  not,  that  there  is  an  implied  exclusion  and  that  this  inter- 
pretation is  supported  by  the  practice  of  Italy,  which  refuses  to 
extradite  its  own  citizens  on  the  ground  that  the  penal  jurisdiction 
of  Italy  takes  cognizance  of  crimes  committed  by  Italians  in  a 
foreign  country.    Further,  many  extradition  treaties,  even  some 
made  by  the  United  States,  expressly  exclude  citizens  from  their 
scope.   The  court  held,  however,  that  such  an  exception  must  be 
explicit;  "the  word  'persons'  includes  all  persons  when  not  quali- 
fied as  it  is  in  some  of  the  treaties  between  this  and  other  nations." 
And  the  court  went  on  to  point  out  the  effect  of  such  an  interpre- 
tation upon  extradition  treaties  such  as  that  with  Great  Britain 
in  1843.  "Inasmuch  as  under  the  laws  of  that  country,  as  of  this, 
crimes  committed  by  their  citizens  within  the  jurisdiction  of  an- 
other country  were  punishable  only  where  the  crime  was  com- 
mitted, it  was  important  that  the  Italian  interpretation  should  not 
be  accepted." 

3.  The  objection  that  the  treaty  was  void  was  more  fundamen- 
tal; Italy  had  refused  to  extradite  Italian  citizens  to  the  United 
States,  and,  even  in  the  present  proceedings,  had  gone  on  record 
as  still  adhering  to  that  principle;  hence,  the  appellant  contended, 
the  obligations  under  the  treaty  were  not  reciprocal  and  the 
treaty,  pro  tanto,  was  void.   The  court  recognized  that  absence 
of  mutuality  rendered  the  treaty  voidable,  but  until  the  United 
States  expressly  abrogated  the  treaty,  it  was  still  in  force.   The 
alternative  to  abrogation  of  this  particular  treaty  was  to  give  up 


THE  CASE  OF  MYERS  AND  TUNSTALL  411 

its  interpretation  of  "persons"  as  including  citizens,  and  this 
would  affect  adversely  five  other  treaties.  "If  the  attitude  of 
Italy  was,  as  contended,  a  violation  of  the  obligations  of  the 
treaty,  which,  in  international  law,  would  have  justified  the 
United  States  in  denouncing  the  treaty  as  no  longer  obligatory, 
it  did  not  automatically  have  that  effect."  In  the  language  of 
Vattel,  quoted  by  the  court,  "when  the  treaty  of  peace  is  vio- 
lated by  one  of  the  contracting  parties,  the  other  has  the  op- 
tion of  either  declaring  the  treaty  null  and  void,  or  allowing  it 
still  to  subsist;  ...  if  he  chooses  not  to  come  to  a  rupture,  the 
treaty  remains  valid  and  obligatory."  There  was,  further,  the 
controlling  fact  that  the  executive  department  had  recognized  the 
treaty  obligation  as  still  binding.  In  his  decision  to  extradite 
Charlton,  the  Secretary  of  State  had  stated  that  "it  would  seem 
entirely  sound  to  consider  ourselves  as  bound  to  surrender  our 
citizens  to  Italy,  even  though  Italy  should  not,  by  reason  of  the 
provision  of  her  municipal  law,  be  able  to  surrender  its  citizens 
to  us."  l  This  was  considered  decisive  by  the  court  and  judgment 
was  affirmed. 

(Charlton  v.  Kelly,  229  U.S.  447-76;  American  Journal  of  Inter- 
national Law  [1913],  vol.  vn,  pp.  580-82;  637-53.) 


THE  CASE  OF  MYERS  AND  TUNSTALL  (1862) 

IN  February,  1862,  Henry  Myers  and  J.  F.  Tunstall,  American 
citizens,  members  of  the  crew  of  the  Confederate  vessel  Sumtcr, 
then  lying  at  Gibraltar,  took  passage  on  the  French  merchant 
steamer  Ville  de  Malaga  for  Cadiz,  in  order  to  obtain  a  supply  of 
coal  for  the  Confederate  cruiser.  The  Ville  de  Malaga,  having 
called  at  Tangier,  Morocco,  Myers  and  Tunstall  went  ashore, 
where,  as  they  were  walking  in  the  street,  the  United  States  Con- 
sul, with  the  aid  of  a  Moorish  military  guard,  seized  them  and  con- 
veyed them  to  the  consulate,  where  they  were  kept  in  irons  till 
the  arrival  of  the  U.S.S.  Ino,  on  which  they  were  shipped  for  the 
United  States.  They  were  subsequently  committed  to  military 

1  The  French  Government  has,  In  its  practice  of  extradition,  made  It  a  fixed  and 
apparently  unalterable  rule  not  to  extradite  its  own  nationals.  See  |  41,  p.  373. 


412  EXTRADITION 

custody  at  Fort  Warren,  Boston.  The  point  having  been  raised 
that,  because  the  men  were  political  offenders,  Morocco  should 
have  been  asked  to  deliver  them  up,  Mr.  Seward  replied  that  none 
of  the  treaties  of  the  Christian  nations  with  Morocco  excepted  that 
class  of  offenders  from  its  operation.  He  intimated  that  extradi- 
tion treaties  between  Christian  nations  contained  such  an  excep- 
tion, because  those  nations  trusted  one  another  to  prevent  any 
abuse  of  their  protection  by  refugees.  No  Christian  state  had 
shown  itself  willing  thus  to  trust  the  Empire  of  Morocco.  The  ut- 
most, he  said,  that  could  be  pretended  was  "  that  some  Christian 
nations,  including  the  United  States,  have  informally  manifested 
their  approval  of  the  extension  of  the  right  of  asylum  granted  by 
the  Sultan  of  Turkey  to  the  Hungarian  refugees  in  the  late  civil 
war  in  Austria.  But  they  were  no  longer  combatants;  their  at- 
tempted revolution  was  ended,  and  the  refugees  were  demanded 
by  Austria,  not  on  the  ground  of  apprehensions  of  danger  from  the 
continued  hostility,  but  to  punish  them  for  the  treason  which  she 
alleged  they  had  committed.  Assuming  the  facts  as  reported,  the 
offenders  in  this  case  were  not  held  or  sheltered  hi  Tangier  as 
exiles,  or  as  refugees  in  asylum,  but  they  were  taken  in  the  very  act 
of  war  against  this  government."  Mr.  Seward  added  that  the 
whole  proceeding  was  conducted  with  the  acquiescence  and  aid  of 
the  Moorish  governor. 

(Taken  textually  from  Moore:  Digest  of  International  Law,  vol. 
iv,  pp.  332-33-) 


ANARCHISTS   (1894) 

ALTHOUGH  anarchists  profess  political  motives  for  their  acts,  yet 
in  June,  1894,  the  British  Government,  after  full  consideration  of 
the  question  by  the  Court  of  Queen's  Bench,  delivered  up  to  France 
a  fugitive  from  justice,  who  was  charged  with  causing  the  explo- 
sion at  the  Cafe  Very  in  Paris,  as  well  as  another  explosion  at  cer- 
tain government  barracks.  The  court  held  "that,  in  order  to  con- 
stitute an  offense  of  a  political  character,  there  must  be  two  or 
more  parties  in  the  state,  each  seeking  to  impose  the  government 
of  their  own  choice  on  the  other;"  and  that  the  offense  must 


UNITED  STATES  v.  RAUSCHER  413 

be  "committed  by  one  side  or  the  other  in  pursuance  of  that 
object." 

(Taken  textually  from  Moore:  Digest  of  International  Law,  vol. 
iv,  p.  354.)  

UNITED  STATES  v.   RAUSCHER 

The  Supreme  Court  of  the  United  States,  1886 

IN  1886  the  defendant  Rauscher  was  indicted  in  the  Circuit 
Court  of  the  United  States  for  the  Southern  District  of  New  York 
on  the  charge  of  inflicting  cruel  and  unusual  punishment  upon 
Janssen,  a  member  of  the  crew  of  an  American  vessel  of  which 
Rauscher  was  an  officer.  Previous  to  the  indictment,  Rauscher 
had  been  extradited  from  Great  Britain  charged  with  the  murder 
of  Janssen,  the  same  set  of  facts  having  been  submitted  as  proof 
in  the  extradition  proceedings  as  had  later  formed  the  basis  of  the 
indictment  for  the  minor  offense.  Rauscher,  however,  had  not 
been  tried  for  murder,  the  charge  in  the  indictment  having  been 
substituted,  although  the  latter  offense  was  not  extraditable  under 
the  treaty  involved  —  the  Webster-Ashburton  Treaty  of  1842. 
The  prisoner  having  been  found  guilty,  it  was  contended,  on  mo- 
tion in  arrest  of  judgment,  that  there  was  no  jurisdiction  to  try 
Rauscher  on  a  charge  other  than  that  for  which  he  had  been  extra- 
dited, and  upon  a  division  of  opinion  among  the  judges  of  the  Cir- 
cuit Court,  the  question  was  certified  to  the  Supreme  Court  of  the 
United  States  for  its  judgment. 

Having  pointed  out  that  there  is  no  obligation  to  extradite, 
apart  from  treaty,  and  that,  in  the  United  States,  extradition  is  a 
matter  falling  solely  within  the  powers  of  the  Federal  Government, 
the  court  considered  the  treaty  of  1842  in  so  far  as  it  provided  "  for 
the  giving  up  of  criminals,  fugitives  from  justice,  in  certain  cases," 
seven  in  all.  It  was  recalled  that  the  very  question  before  the  court 
had  formed  the  subject  of  diplomatic  negotiations  between  the 
United  States  and  Great  Britain  in  previous  cases  of  extradition. 
"...  Mr.  Fish  defended  the  right  of  the  government  or  state  in 
which  the  offense  was  committed  to  try  a  person  extradited  under 
this  treaty  for  any  other  criminal  offense,  as  well  as  for  the  one  for 
which  the  extradition  had  been  demanded ;  while  Lord  Derby,  at 
the  head  of  the  Foreign  Office  in  England,  construed  the  treaty  as 


4H  EXTRADITION 

requiring  the  government  which  had  demanded  the  extradition  of 
an  offender  against  its  laws  for  a  prescribed  offense,  mentioned  in 
the  treaty  and  in  the  demand  for  his  extradition,  to  try  him  for  that 
offense  and  for  no  other.  .  .  .  The  negotiations  between  the  two 
governments,  however,  on  that  subject  were  inconclusive.  .  .  ." 
The  court  expressed  its  own  opinion,  in  part,  as  follows: 
"We  have  already  seen  that,  according  to  the  doctrine  of  pub- 
licists and  writers  on  international  law,  the  country  receiving  the 
offender  against  its  laws  from  another  country  had  no  right  to 
proceed  against  him  for  any  other  offense  than  that  for  which  he 
had  been  delivered  up.  This  is  a  principle  which  commends  itself 
as  an  appropriate  adjunct  to  the  discretionary  exercise  of  the  power 
of  rendition,  because  it  can  hardly  be  supposed  that  a  government 
which  was  under  no  treaty  obligation  nor  any  absolute  obligation 
of  public  duty  to  seize  a  person  who  had  found  an  asylum  within 
its  bosom  and  turn  him  over  to  another  country  for  trial,  would  be 
willing  to  do  this,  unless  a  case  was  made  of  some  specific  offense 
of  a  character  which  justified  the  government  in  depriving  the 
party  of  his  asylum.  It  is  unreasonable  that  the  country  of  the 
asylum  should  be  expected  to  deliver  up  such  person  to  be  dealt 
with  by  the  demanding  government  without  any  limitation,  im- 
plied or  otherwise,  upon  its  prosecution  of  the  party.  In  exer- 
cising its  discretion,  it  might"  be  very  willing  to  deliver  up  offend- 
ers against  such  laws  as  were  essential  to  the  protection  of  life, 
liberty,  and  person,  while  it  would  not  be  willing  to  do  this  on  ac- 
count of  minor  misdemeanors  or  of  a  certain  class  of  political 
offenses  in  which  it  would  have  no  interest  or  sympathy.  .  .  .  In- 
deed, the  enumeration  of  offenses  in  most  of  these  treaties,  and  es- 
pecially in  the  treaty  now  under  consideration,  is  so  specific,  and 
marked  by  such  a  clear  line  in  regard  to  the  magnitude  and  impor- 
tance of  those  offenses,  that  it  is  impossible  to  give  any  other  inter- 
pretation to  it  than  that  of  the  exclusion  of  the  right  of  extradi- 
tion for  any  others.  .  .  . 

"It  is  unreasonable  to  suppose  that  any  demand  for  rendition 
framed  upon  a  general  representation  to  the  government  of  the 
asylum,  (if  we  may  use  such  an  expression),  that  the  party  for 
whom  the  demand  was  made  was  guilty  of  some  violation  of  the 
laws  of  the  country  which  demanded  him,  without  specifying  any 


UNITED  STATES  v.  RAUSCHER  415 

particular  offense  with  which  he  was  charged,  and  even  without 
specifying  an  offense  mentioned  in  the  treaty,  would  receive  any 
serious  attention;  and  yet  such  is  the  effect  of  the  construction  that 
the  party  is  properly  liable  to  trial  for  any  other  offense  than  that 
for  which  he  was  demanded,  and  which  is  described  in  the  treaty. 
There  would,  under  that  view  of  the  subject,  seem  to  be  no  need 
of  a  description  of  a  specific  offense  in  making  the  demand.  .  .  . 
If  the  proceedings  under  which  the  party  is  arrested  in  a  country 
where  he  is  peaceably  and  quietly  living,  and  to  the  protection  of 
whose  laws  he  is  entitled,  are  to  have  no  influence  in  limiting  the 
prosecution  in  the  country  where  the  offense  is  charged  to  have 
been  committed,  there  is  very  little  use  for  this  particularity  in 
charging  a  specific  offense,  requiring  that  offense  to  be  one  men- 
tioned in  the  treaty,  as  well  as  sufficient  evidence  of  the  party's 
guilt  to  put  him  upon  trial  for  it.  ... 

"If  there  should  remain  any  doubt  upon  this  construction  of 
the  treaty  itself,  the  language  of  two  acts  of  Congress,  hereto- 
fore cited,  incorporated  in  the  Revised  Statutes,  must  set  this 
question  at  rest.  [Rev.  Stat.,  §§  5272,  5275.]  .  .  . 

"The  obvious  meaning  of  these  two  statutes,  which  have  ref- 
erence to  all  treaties  of  extradition  made  by  the  United  States, 
is  that  the  party  shall  not  be  delivered  up  by  this  government  to 
be  tried  for  any  other  offense  than  that  charged  in  the  extradi- 
tion proceedings;  and  that,  when  brought  into  this  country  upon 
similar  proceedings,  he  shall  not  be  arrested  or  tried  for  any  other 
offense  than  that  with  which  he  was  charged  in  those  proceedings, 
until  he  shall  have  had  a  reasonable  time  to  return  unmolested 
to  the  country  from  which  he  was  brought.  .  .  . 

"Upon  a  review  of  these  decisions  of  the  federal  and  state 
courts,  to  which  may  be  added  the  opinions  of  the  distinguished 
writers  which  we  have  cited  in  the  earlier  part  of  this  opinion, 
we  feel  authorized  to  state  that  the  weight  of  authority  and  of 
sound  principle  are  in  favor  of  the  proposition,  that  a  person 
who  has  been  brought  within  the  jurisdiction  of  the  court  by 
virtue  of  proceedings  under  an  extradition  treaty,  can  only  be 
tried  for  one  of  the  offenses  described  in  that  treaty,  and  for  the 
offense  with  which  he  is  charged  in  the  proceedings  for  his  extra- 
dition, until  a  reasonable  time  and  opportunity  have  been  given 


416  EXTRADITION 

him,  after  his  release  or  trial  upon  such  charge,  to  return  to  the 
country  from  whose  asylum  he  had  been  forcibly  taken  under 
those  proceedings."  1 

(United  States  v.  Rauscher,  119  U.S.  407-36;  Foreign  Relations 
of  the  United  States,  1876,  pp.  204-307;  Moore:  Extradition,  vol. 
I,  pp.  212-46.) 


THE  SAVARKAR  CASE 

The  Permanent  Court  of  Arbitration  at  The  Hague,  1911 

BY  an  exchange  of  notes  on  the  4th  and  the  5th  of  October,  1910, 
the  British  and  the  French  Governments  agreed  to  submit  to  arbi- 
tration, "on  the  one  hand,  the  questions  of  fact  and  law  raised  by 
the  arrest  and  restoration  to  the  mail  steamer  Morea  at  Marseilles, 
on  the  8th  of  July,  1910,  of  the  Indian,  Vinayak  Damodar  Savar- 
kar,  who  had  escaped  from  that  vessel,  on  board  of  which  he  was 
in  custody;  and  on  the  other  hand,  the  demand  of  the  Govern- 
ment of  the  Republic  with  a  view  to  the  restitution  to  them  of 
Savarkar." 

The  circumstances  leading  up  to  the  demand  of  the  French 
Government  for  the  restitution  of  Savarkar  were  as  follows: 

Savarkar  was  a  Hindu  revolutionary  accused  of  abetting  the 

1  By  its  decision  in  Rauscher's  case  the  Supreme  Court  enunciated  for  the  United 
States  the  principle  contended  for  by  Great  Britain  ten  years  previously  in  its 
controversy  with  the  United  States  arising  out  of  the  Lawrence  and  the  Winslow 
cases.  So  apparently  irreconcilable  were  the  respective  contentions,  that  when 
Great  Britain  in  Winslow's  case  asked  for  an  assurance  that  he  would  not  be  tried 
for  any  offense  other  than  the  one  for  which  extradition  was  requested  "until  he  had 
been  restored  or  had  an  opportunity  of  returning  to  Her  Majesty's  dominions,"  Mr. 
Fish  replied  that  "neither  the  President,  nor  any  officer  of  the  Federal  Government, 
has  power  to  control  or  to  dismiss  the  prosecution  in  Winslow's  case,  or  in  any  case 
where  the  offense  is  against  the  laws  of  one  of  the  states,  and  could  not  give  any 
stipulation  or  make  any  arrangement  whatever  as  to  the  offenses  for  which  he  should 
be  tried  when  returned  to  the  justice  of  the  state  against  whose  laws  he  may  have 
offended."  As  a  result,  extradition  proceedings  under  the  Treaty  of  1842  were  sus- 
pended for  six  months,  neither  government  making  requisitions  and  many  criminals 
in  consequence  escaping,  among  them  Winslow.  But  as  such  a  situation  was  found 
inconvenient,  the  British  Government  undertook  to  apply  the  provisions  of  the  old 
treaty  until  a  new  extradition  arrangement  could  be  made  "  without  asking  for  any 
engagement  as  to  such  persons  not  being  tried  in  the  United  States  for  other  than  the 
offenses  for  which  extradition  has  been  demanded." 

The  new  extradition  treaty  with  Great  Britain  was  concluded  in  1889  and  contains 
a  provision  in  the  sense  of  the  British  contention  and  the  Rauscher  decision. 


THE  SAVARKAR  CASE  417 

murder  of  an  Indian  official.  He  was  arrested  in  London  and, 
after  a  preliminary  examination,  ordered  to-  be  sent  back  to  India 
to  stand  trial.  As  the  steamer  Morea,  on  which  he  was  to  sail, 
would  in  the  ordinary  course  of  her  voyage  touch  at  Marseilles, 
and  as  there  might  possibly  be  an  attempt  on  the  part  of  Hindu 
sympathizers  at  that  port  to  rescue  Savarkar,  Sir  E.  Henry,  the 
Commissioner  of  the  Metropolitan  Police  in  London,  wrote  on 
June  29  to  M.  Hennion,  Directeur  de  la  Stirete  General  at  Paris, 
asking  him  to  insure  the  safety  of  the  prisoner  while  at  Mar- 
seilles. Though  M.  Hennion  did  not  send  a  reply  until  the  Qth  of 
July,  the  Ministry  of  the  Interior  gave  the  necessary  instructions 
through  the  Prefect  of  the  Rhdne,  to  whom  was  communicated 
the  letter  of  Sir  E.  Henry.  On  the  yth  of  July  the  Morea  arrived 
at  Marseilles,  and,  soon  after  her  arrival,  M.  Leblais,  Commis- 
sionaire Special,  came  on  board  and  showed  a  letter  relative  to  as- 
sistance to  be  given  by  the  French  police  in  case  of  need,  and,  be- 
fore leaving,  introduced  the  British  officials  in  charge  of  Savarkar 
to  the  French  officer  of  gendarmerie. 

Next  morning  Savarkar  escaped  through  a  porthole  and  swam 
ashore.  The  Indian  constables  on  the  Morea  raised  a  shout  and 
the  French  policeman  on  guard,  Brigadier  Pesqui6,  went  in  pur- 
suit. Overtaking  him,  he  started  back  to  the  ship  with  him,  and, 
on  the  way,  three  men  from  the  Morea  came  up  and  seized  Savar- 
kar by  the  shoulder,  though  Pesquie  still  kept  custody  of  his  pris- 
oner and  handed  him  over  to  the  British  officials  on  board. 

The  Morea  left  Marseilles  on  July  9  and  arrived  at  Aden  on 
July  17.  But  it  was  not  till  July  18  that  France  made  representa- 
tion to  Great  Britain  that  the  surrender  of  Savarkar  had  been 
irregular  and  in  violation  of  international  law,  and  requested  the 
restoration  of  Savarkar  to  French  jurisdiction.  In  the  course  of 
negotiations,  the  matter  was  seen  to  present  an  interesting  and 
important  subject  for  international  adjudication.  Accordingly, 
following  the  exchange  of  notes  referred  to,  a  protocol  was  signed 
at  London  on  October  25,  1910,  referring  the  matter  to  a  tribunal 
of  five  arbitrators  to  be  chosen  from  the  Permanent  Court  at  The 
Hague.  The  procedure  to  be  followed  was  laid  down  in  the  proto- 
col, but  in  a  supplementary  note  a  few  days  later  it  was  agreed 
that,  in  the  absence  of  specific  provisions  on  any  point,  the  Con- 


4i  8  EXTRADITION 

vention  of  1907  for  the  Pacific  Settlement  of  International  Dis- 
putes was  to  govern. 

The  tribunal  met  at  The  Hague  on  February  14,  1911,  under 
the  presidency  of  M.  Beernaert,  of  Belgium.  The  other  members 
were  the  Earl  of  Desart,  of  Great  Britain,  M.  Renault,  of  France, 
M.  Gram,  of  Norway,  and  Jonkeer  A.  F.  de  Savornin  Lohman,  of 
the  Netherlands.  The  decision  was  rendered  February  24,  1911. 

As  the  case  was  presented,  it  was  not  so  much  the  facts  that  were 
in  controversy  as  the  juridical  interpretation  of  the  facts  and  the 
principles  to  be  applied.  France  advanced  four  arguments  to  sup- 
port her  demand: 

1.  Savarkar,  on  French  territory,  had  an  inalienable  right  of 
asylum. 

2.  British  officials  had  violated  French  sovereignty. 

3.  The  surrender  by  a  subordinate   official  was  irregular  in 
French  law  and  in  international  law,  and  for  this  reason 
Savarkar  ought  to  have   been  given  back  to  the  French 
authorities. 

4.  There  had  been  error  on  the  part  of  Pesquie  as  to  the  iden- 
tity of  the  person  surrendered. 

1.  France  did  not  press  this  point  before  the  tribunal,  though 
it  had  put  it  forward  in  the  diplomatic  correspondence  with  the 
British  Foreign  Secretary.   As  the  British  case  put  it,  "  the  power 
of  expulsion  is  the  complement  of  the  power  of  exclusion,"  and 
though  a  government  may  grant  asylum,  the  fugitive  may  not 
claim  it  as  of  right.    Great  Britain  has  used  the  power  of  expulsion 
so  rarely  that  a  mistaken  idea  has  arisen  about  the  right  of  asylum 
in  that  country.    There  may  be  some  question  as  to  where  the 
power  to  expel  resides,  but  Great  Britain  adheres  to  the  universal 
principle  of  the  right  of  expulsion. 

2.  The  violation  of  French  sovereignty,  it  was  argued,  arose 
from  the  detention  of  Savarkar  in  a  French  port  as  well  as  from 
his  arrest  on  French  soil.   France  had  not  guaranteed  transit  in 
the  arrangement  made  with  Sir  E.  Henry.     Such  an  agreement 
would  have  to  be  explicit  and  was  not  in  the  power  of  M.  Hennion 
to  make.  Nor  had  Pesquie  orders  to  arrest  Savarkar,  as  such,  on 
French  territory.  His  instructions  were  merely  to  keep  off  Hindus 


THE  SAVARKAR  CASE  419 

and  to  prevent  the  crew  from  going  ashore.  Savarkar,  the  revo- 
lutionary, once  upon  French  soil  did  not  come  under  the  ordinary 
precautionary  measures  taken  by  the  French  police  at  Marseilles 
in  accordance  with  the  Anglo-French  Declaration  re  deserters, 
and  could  not  be  delivered  up  except  by  the  sovereign  act  of  extra- 
dition. In  the  events  leading  to  the  arrest,  the  British  officials  had 
taken  the  initiative  by  raising  an  outcry  which  caused  Pesqui£  to 
pursue  and  had  assisted  in  the  arrest,  thus  usurping  authority 
within  French  jurisdiction. 

On  the  contrary,  Great  Britain  maintained  that  the  detention 
of  Savarkar  on  the  Morea  was  not  illegal  under  the  law  of  the 
flag,  and  hence  French  sovereignty  over  territorial  waters  had 
not  been  violated.  Merely  touching  at  a  port  in  the  prosecu- 
tion of  a  voyage  does  not,  for  purposes  of  jurisdiction,  have  the 
same  significance  as  transit  over  French  soil.  The  Morea,  especially 
after  the  Henry-Hennion  correspondence,  entered  the  port  under 
an  implied  permission,  and,  further,  the  action  of  the  French 
police  authorities,  hi  allowing  Savarkar  to  remain  on  board,  showed 
a  dear  intention  not  to  exercise  any  jurisdiction  over  Savarkar. 
Were  it  otherwise,  the  Morea  would  not  have  come  within  French 
waters;  at  any  rate,  other  arrangements  would  have  been  made 
for  Savarkar's  transportation.  As  for  the  violation  of  sovereignty 
upon  French  soil,  Great  Britain  contended  that  the  French  Gov- 
ernment had  issued  instructions  recognizing  the  legality  of  the 
custody  of  Savarkar  on  the  Morea  and  directing  steps  to  be  taken 
to  prevent  escape.  The  inference  that  the  British  Government 
made  was  that  France  would  deny  to  Savarkar  any  right  to  avail 
himself  of  an  opportunity  to  find  asylum  on  French  soil.  The  police 
arrangements  had  been  made  in  accordance  with  these  instruc- 
tions. The  order  preventing  the  crew  from  going  ashore  was  the 
complement  of  that  preventing  any  Hindus  from  going  on  board 
and  not  a  mere  precaution  against  desertion.  The  English  officials 
did  not  effect  the  arrest  —  that  was  done  by  Pesqui6;  they  merely 
gave  the  assistance  that  any  bystander  might  have  been  called 
upon  to  render,  and  gave  it  in  all  good  faith  and  in  reliance  upon 
arrangements  already  made.  If,  suggested  the  British  reply,  a 
Hindu  sympathizer  had  succeeded  in  getting  Savarkar  ashore, 
would  the  same  set  of  circumstances  be  regarded  as  anything  else 


420  EXTRADITION 

than  proper?  And  If  the  latter  situation  would  have  been  covered 
by  the  arrangements  at  ^Marseilles,  why  not  the  actual  case  that 
arose,  especially  as  the  telegraphic  instructions  of  the  Minister 
of  the  Interior  were  "to  prevent  all  attempts  of  this  kind"? 

3.  Irregularity  of  surrender  was  the  chief  objection  taken  by 
France.  Once  Savarkar  was  on  French  soil,  his  status  became  a 
matter  for  the  Anglo-French  extradition  treaty  to  determine.  In 
extradition  proceedings  only  competent  agents  of  the  state  com- 
petent to  punish  can  make  the  demand  and  only  competent  agents 
of  the  state  of  refuge  can  surrender.  Extradition  is  in  its  nature 
an  international  contract,  a  diplomatic  bargain,  and  the  consent 
of  the  state  of  refuge  must  be  expressed  in  the  manner  indicated  in 
the  treaty.  In  the  case  of  Savarkar  this  should  have  been  through 
the  diplomatic  channel;  in  no  case  could  the  action  of  agents  not 
qualified-have  the  effect  of  removing  him  from  French  jurisdiction. 

Great  Britain  admitted  that  the  return  had  been  made  without 
conforming  to  the  formalities  of  the  extradition  treaties.  As 
Savarkar  had  been  handed  over  without  any  diplomatic  demand, 
there  was  no  occasion  to  make  one  afterwards.  The  proceedings 
had  been  outside  of  extradition  procedure,  but  were  none  the  less 
regular  because  exceptional.  States  had  various  methods  of  ridding 
themselves  of  aliens.  They  could  exclude  or  expel;  expulsion  might 
be  made  of  their  own  accord  or  on  request;  and  a  request  might  be 
presented  through  the  diplomatic  channel  or  directly.  Extradition 
implied  surrender  after  formal  demand,  usually,  but  not  neces- 
sarily, in  pursuance  of  an  extradition  treaty.  A  state  may  sur- 
render for  an  offense  outside  the  treaty  and  in  a  manner  other  than 
stipulated  in  the  treaty.  The  Anglo-French  treaty  did  not  pre- 
clude other  arrangements  and  the  British  Government  had  been 
entitled  to  rely  on  the  correspondence  of  the  administrative  offi- 
cials as  a  guarantee  that  the  French  Government  acquiesced  in  the 
return  of  Savarkar,  especially  as  no  immediate  protest  was  made. 
Even  granting  that  Pesquie  had  acted  irregularly,  that  fact  could 
not  remove  Savarkar  from  the  forum  where  he  stood  charged  with 
crime.  The  mistake  of  a  municipal  official  is  not  a  matter  of  inter- 
national concern.  France  had  taken  this  ground  very  strongly  in 
the  Lamirande  case  in  1866,  where,  by  an  irregularity  on  the  part 
of  a  Canadian  official,  France  had  obtained  Lamirande  and  had 


THE  SAVARKAR  CASE  421 

refused  to  give  him  up,  although,  to  the  knowledge  of  the  French 
Consul,  habeas  corpus  proceedings  were  still  pending  in  the  Cana- 
dian courts.  In  a  word,  the  British  contention  was,  that,  as  the 
British  authorities  had  used  neither  fraud  nor  violence,  Savarkar 
was  rightly  before  the  Indian  courts  and  could  not  be  removed 
therefrom  because  a  French  police  officer  had  acted  in  excess  of 
his  authority. 

4.  The  ignorance  of  Pesquie  as  to  the  identity  of  the  man  ar- 
rested was  held  by  France  to  constitute  essential  error  and  to 
make  the  whole  proceeding  a  nullity.  PesquiS  affirmed  that  he 
thought  Savarkar  was  merely  one  of  the  crew  that  had  deserted  or 
"possibly  had  committed  an  offense  on  board."  The  order  given 
him  to  prevent  the  crew  from  coming  off  was  the  reason  for  the 
pursuit,  not  any  zeal  to  execute  extraterritorial  commissions  for 
Great  Britain. 

Great  Britain,  however,  pointed  out  in  reply  that  the  British 
officials  could  not  be  taxed  with  the  misapprehension  under  which 
Pesquie  had  acted.  He  had  asked  no  questions  about  his  prisoner, 
although  he  had  conversed  in  French  with  the  British  inspector  in 
charge  of  Savarkar.  He  had  received  no  false  information  and  the 
British  constables  could  not  be  expected  to  know  that  he  was  igno- 
rant of  Savarkar's  identity.  At  any  rate,  his  superior  officials 
were  well  aware  of  it,  for  Pesqui6  did  not  put  forward  this  plea 
until  July  23,  several  days  after  France  had  taken  up  the  matter 
diplomatically,  yet  no  one  asserted  the  man  to  be  other  than  Savar- 
kar. But  whether  there  had  been  error  or  not,  Great  Britain  con- 
tended, the  right  to  retain  Savarkar  was  in  no  way  affected. 

The  tribunal,  in  rendering  its  award,  attached  full  value  to  the 
arrangements  made  through  the  Henry-Hennion  correspondence 
and  considered  that  "  the  circumstances  show  that  the  persons  on 
board  in  charge  of  Savarkar  might  well  have  believed  that  they 
could  count  on  the  assistance  of  the  French  police."  The  igno- 
rance of  the  brigadier  as  to  the  identity  of  Savarkar,  as  well  as  the 
assistance  given  by  the  British  officials,  was  without  significance; 
there  had  been  no  recourse  to  fraud  or  force,  and  "there  was  not, 
in  the  circumstances  of  the  arrest  and  delivery  of  Savarkar  to  the 
British  authorities  and  of  his  removal  to  India,  anything  in  the 
nature  of  a  violation  of  the  sovereignty  of  France,  and  ...  all 


422  LETTERS  ROGATORY 

those  who  took  part  in  the  matter  certainly  acted  in  good  faith 
and  had  no  thought  of  doing  anything  unlawful." 

On  the  important  point  of  irregularity,  the  tribunal  sustained 
the  contention  of  the  French,  but  affirmed  that  "  there  is  no  rule  of 
international  law  imposing,  in  circumstances  such  as  those  which 
have  been  set  out  above,  any  obligation  on  the  power  which  has  in 
its  custody  a  prisoner,  to  restore  him  because  of  a  mistake  com- 
mitted by  the  foreign  agent  who  delivered  him  up  to  that  power." 

Hence  the  award:  "The  arbitral  tribunal  decides  that  the 
Government  of  His  Britannic  Majesty  is  not  required  to  restore 
the  said  Vinayak  Damodar  Savarkar  to  the  Government  of  the 
French  Republic." 

(British  Case  and  Counter-case,  published  as  White  Papers; 
Revue  Generate  de  Droit  International  Public  [1911],  vol.  xvin,  pp. 
303-52;  American  Journal  of  International  Law  [1911],  vol.  v,  pp. 
208-10;  520-23;  Supplement,  pp.  37-38;  Revue  de  Droit  Interna- 
tional [1911],  vol.  XLVTH,  pp.  370-403;  G.  G.  Wilson:  The  Hague 
Arbitration  Cases.) 


§50.   LETTERS  ROGATORY 


LETTERS  ROGATORY   (1874) 

IN  1874  a  suit  was  pending  in  the  District  Court  of  the  United 
States  for  the  Southern  District  of  New  York  against  a  German 
firm  having  a  branch  in  New  York  City,  to  recover  penalties  for 
alleged  undervaluation  in  the  importation  of  goods.  As  both 
parties  desired  to  obtain  the  testimony  of  persons  at  various 
places  in  Europe,  the  court,  on  motion  of  the  attorney,  made,  in 
conformity  with  the  practice  long  prevailing  in  the  district,  an 
order  designating  the  United  States  Consuls  at  the  specified  places 
as  commissioners  to  take  the  desired  testimony.  The  order  au- 
thorized, but  did  not  require,  the  consuls  so  to  act,  and  in  perform- 
ing such  functions  it  was  understood  that  they  acted  as  commis- 
sioners and  not  as  consuls,  their  compensation  being  paid  by  the 
litigants,  and  that  they  had  no  power  to  compel  the  attendance 
of  witnesses,  except  with  the  cooperation  of  the  local  authorities, 
which  was  sometimes  granted  and  sometimes  withheld. 


LETTERS  ROGATORY  423 

Among  the  consuls  designated  to  act  in  the  present  instance, 
four  were  in  Germany.  The  German  Government  objected  to 
theu:  executing  the  commissions,  on  the  ground  that  the  taking 
of  the  sworn  testimony  of  German  subjects  in  the  cities  of  the 
Empire  was  not  one  of  the  functions  of  consuls,  and  could  not  be 
derived  from  article  9  of  the  consular  convention  between  the 
two  countries. 

The  United  States  replied  that  it  was  not  claimed  that  a  United 
States  Consul,  as  such,  had,  by  treaty  or  convention,  the  right  to 
take  such  testimony;  that  the  consul's  services  hi  such  matters 
were  purely  ministerial  and  entirely  voluntary;  that  the  govern- 
ment was  not  a  party  to  the  proceeding,  except  so  far  as  it  might 
have,  as  in  the  present  instance,  an  interest  in  the  action;  and  that 
it  was  hoped  that  the  German  Government  would,  with  these 
explanations,  withdraw  its  objections  and  consider  it  an  act  of 
comity  to  facilitate  the  taking  of  the  testimony. 

The  German  Government  answered  that,  while  the  competency 
of  the  courts  in  the  United  States  to  appoint  commissioners  to 
take  testimony  was  not  doubted,  yet,  if  the  testimony  was  to  be 
taken  in  a  foreign  country,  it  could,  according  to  international  law, 
be  taken,  in  the  absence  of  a  treaty  on  the  subject,  only  under  the 
limitations  and  forms  prescribed  by  the  laws  there  in  force;  that 
the  objection  of  the  German  Government  "was  not  so  much  to 
the  taking  of  testimony  under  oath  by  American  Consuls  in  their 
official  capacity"  as  to  "the  taking  of  testimony  by  American 
Commissioners  within  the  limits  of  the  German  Empire,  ...  it 
being  incompatible  with  the  legal  system  of  this  country;"  that 
the  German  courts,  however,  recognized  the  duty,  under  the 
sanction  of  German  law,  of  assisting  the  courts  of  other  countries 
to  do  justice,  and  therefore  made  it  a  practice  to  comply,  without 
treaty  obligation,  with  the  requests  of  foreign  courts  to  obtain 
testimony,  such  demands  being  known  in  Germany  as  "requi- 
sitions," which  were  analogous  to  "letters  rogatory"  in  England 
and  the  United  States;  and  that  in  such  proceedings  the  parties 
to  the  litigation  were  at  liberty  through  their  attorneys  to  exercise 
a  proper  influence  by  putting  questions  through  the  judges. 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  n, 
pp.  124-26.) 


CHAPTER   X 


§51.  PIRACY 


SIR  LEOLINE  JENKINS  RELATES  THE  TRIAL  OF 
PRIVATEERS  FOR  PIRACY  (1675) 

"BUT  I  see  your  embarrass  hath  been  much  greater  about  our 
Scotch  privateers:  The  truth  is,  I  am  much  scandalized  at  them 
in  a  time  of  war;  they  are  in  my  poor  judgment  great  instruments 
to  irritate  the  king's  friends,  to  undo  his  subjects,  and  none  at  all 
to  profit  upon  the  enemy;  but  it  will  not  be  remedied:  the  priva- 
teers in  our  wars  are  like  the  mathematici  in  old  Rome,  a  sort  of 
people  that  will  be  always  found  fault  with,  but  still  made  use  of: 
I  may  venture  to  say  the  same  upon  your  question,  which  is  the 
proper  place  of  judging  these  Scots,  that  it  will  often  fall  out,  but 
it  will  never  be  decided;  because  there  is  no  third  power  that  can 
give  a  law  that  shall  be  decisive  or  binding  between  two  inde- 
pendent princes,  unless  themselves  shall  please  to  do  it  (which 
seldom  happens)  and  then  cannot  be  extended  beyond  the  cases 
expressed  by  that  treaty.  His  Majesty  had,  when  I  came  from 
home,  a  controversy  with  France,  in  a  case  not  much  unlike  yours: 
a  French  merchantman  had  gone  out  from  La  Rochelle  to  the 
West  Indies,  and  had  committed  many  robberies  and  great 
cruelties  upon  those  of  his  crew  in  the  voyage;  he,  in  his  return, 
put  in  at  Kinsale  for  refreshment,  his  company  accuse  him,  he 
flies,  his  ship  and  goods  are  confiscated,  as  the  goods  of  pirates: 
This  sentence  was  opposed  by  the  French  Ambassador  M.  Col- 
bert, and  the  cause  desired  to  be  remanded  to  the  natural  judge 


EMPEROR  OF  AUSTRIA  v.  DAY  AND  KOSSUTH       425 

(as  was  pretended)  in  France.  This  produced  several  memorials, 
and  several  answers,  in  which  my  little  service  was  commanded; 
and  the  King  and  his  council  were  pleased  to  adjudge,  he  was  suf- 
ficiently founded  in  point  of  jurisdiction,  to  confiscate  that  ship 
and  goods,  and  to  try  capitally  the  person  himself,  had  he  been 
in  hold;  the  matter  of  renvoy  being  a  thing  quite  disused  among 
princes;  and  as  every  man,  by  the  usage  of  our  European  nations, 
is  justiciable  in  the  place  where  the  crime  is  committed;  so  are 
pirates,  being  reputed  out  of  the  protection  of  all  laws  and  privi- 
leges, and  to  be  tried  in  what  ports  soever  they  are  taken."1 

(Extract  from  Wynne:  Life  of  Sir  Leoline  Jenkins  [London, 
1724],  vol.  n,  p.  714.) 


§52.  PROTECTION  OF  SOVEREIGN  INTERESTS 


THE  EMPEROR  OF  AUSTRIA  v.  DAY  AND   KOSSUTH 

(1861) 

THE  defendants  having  manufactured  a  large  quantity  of 
printed  paper  to  represent  the  public  paper  money  of  the  Kingdom 
of  Hungary,  in  order  to  use  it,  when  opportunity  should  occur, 
for  purposes  hostile  to  the  sovereign  ruling  power  of  that  kingdom, 
they  were  restrained,  at  the  suit  of  the  Emperor  of  Austria,  as 
King  of  Hungary,  and  decreed  to  deliver  up  the  paper  to  be  can- 
celed, and  restrained  by  perpetual  injunction  .from  manufacturing 
such  paper. 

[The  arguments  of  counsel  were  omitted.] 

The  Vice-Chancellor  (Sir  John  Stuart).  The  plaintiff  sues  in  his 
sovereign  character,  as  King  of  Hungary.  He  asks  the  assistance 
of  the  [court  to  prevent  an  injury,  of  a  public  kind,  to  what  he 
asserts  to  be  his  legal  rights.  These  rights  he  claims  as  the  ac- 

1  Sir  Leoline  Jenkins  in  a  charge  given  at  a  session  of  Admiralty  within  the  Cinque 
Ports  September  a,  1668,  said:  "You  are  therefore  to  enquire  of  all  pirates  and  sea- 
rovers,  they  are  in  the  eye  of  the  law  hcslfs  humani  genrris,  enemies  not  of  one  na- 
tion or  of  one  sort  of  people  only,  but  of  all  mankind.  They  are  outlawed,  as  I  may 
say,  by  the  laws  of  all  nations;  that  is,  out  of  the  protection  of  all  princes  and  of  all 
laws  whatsoever.  Everybody  is  commissioned,  and  is  to  be  armed  against  them,  as 
against  rebels  and  traitors,  to  subdue  and  to  root  them  out."  (Extract  from  Wynne: 
Life  of  Sir  Leoline  Jenkins  [London,  17x4],  vol.  I,  p.  Luurvi.) 


426  PROTECTION  OF  SOVEREIGN  INTERESTS 

knowledged  possessor  of  the  sovereign  in  a  foreign  state  at  peace 
with  this  kingdom. 

It  appears  that  the  defendants  have  manufactured  and  pre- 
pared in  this  country  a  vast  quantity  of  printed  paper,  purported 
to  represent  public  paper  money  of  Hungary,  such  as  could  be 
lawfully  issued  by  the  sovereign  power.  What  they  have  thus 
prepared  is  intended  to  be  circulated  at  some  future  time  as  the 
public  paper  money  of  Hungary.  This  paper  has  been  thus  made 
and  prepared,  not  only  without  the  license  of  the  plaintiff,  but  as 
in  exercise  of  some  contemplated  power  hostile  to  that  of  the 
plaintiff,  and  intended  to  supersede  it. 

What  the  court  has  now  to  decide  is  the  question  whether  the 
defendants  can,  by  the  law  of  England,  be  allowed  to  continue  in 
possession,  or  to  be  protected  in  the  possession,  of  this  large 
quantity  of  printed  paper,  manufactured  and  held  by  them  for 
such  a  purpose;  or  whether,  on  the  other  hand,  the  plaintiff  is 
entitled  to  have  the  right  of  which  he  claims  to  be  in  possession 
protected  against  the  invasion  of  the  defendants,  and  to  have 
delivered  up  to  him  what  has  been  thus  prepared,  and  made 
ready  to  be  used,  for  a  purpose  hostile  to  his  existing  right. 

For  the  defendants,  it  has  been  argued  that  this  court  has  no 
jurisdiction  in  such  a  case;  that  what  is  complained  of  is  a  public 
wrong,  not  cognizable  by  the  law  of  England,  because  it  relates 
merely  to  the  public  and  political  affairs  of  a  foreign  nation.  The 
defendant's  counsel  have  admitted  that  a  foreign  sovereign  may 
have  relief  in  this  court  when  he  sues  in  his  public  character  to 
recover  public  property  within  the  jurisdiction  of  this  court. 
But  they  insist  that  what  is  in  question  in  this  cause  is  not  any 
right  of  property,  but  a  mere  public  and  political  right  which,  by 
the  Constitution  of  Hungary,  is  not  absolute  in  the  sovereign, 
but  subject  to  the  control  and  direction  of  the  Diet  of  that  king- 
dom. Such  a  right,  they  say,  is  beyond  the  jurisdiction  of  this  court. 

If  the  question  related  merely  to  an  affair  of  state  it  would  be 
a  question,  not  of  law,  but  for  mere  political  discussion.  But  the 
regulation  of  the  coin  and  currency  of  every  state  is  a  great  pre- 
rogative right  of  the  sovereign  power.  It  is  not  a  mere  municipal 
right,  or  a  mere  question  of  municipal  law.  Money  is  the  medium 
of  commerce  between  all  civilized  nations;  therefore,  the  prerog- 


EMPEROR  OF  AUSTRIA  t.  DAY  AND  KOSSUTH       427 

ative  of  each  sovereign  state  as  to  money  is  but  a  great  public 
right  recognized  and  protected  by  the  law  of  nations.  A  public 
right,  recognized  by  the  law  of  nations,  is  a  legal  right;  because 
the  law  of  nations  is  part  of  the  common  law  of  England. 

These  propositions  are  supported  by  unquestionable  authority. 
In  the  modern  version  of  Blackstone's  Commentaries  (4  Steph. 
Com.  282)  it  is  laid  down  (and  it  has  so  always  been  held  in  our 
courts)  that  the  law  of  nations,  wherever  any  question  arises, 
which  is  properly  the  object  of  its  jurisdiction,  is  adopted  in  its 
full  extent  by  the  common  law  of  England,  and  held  to  be  part 
of  the  law  of  the  land.  Acts  of  Parliament,  which  have  been  from 
time  to  time  made  to  enforce  this  universal  law,  or  to  facilitate 
the  execution  of  its  decisions,  are  not  considered  as  introductive  of 
any  new  rule,  but  merely  declaratory  of  the  old  fundamental  con- 
stitution of  the  kingdom,  without  which  it  must  cease  to  be  part 
of  the  civilized  world. 

To  apply  these  acknowledged  principles  of  the  law  of  nations 
and  law  of  England  to  the  present  case,  it  appears  that  the  British 
Parliament  (by  the  Act  n  Geo.  4  and  i  Wm.  4,  c.  66)  has  enacted 
that  the  forgery  or  counterfeiting  the  paper  money  of  any  foreign 
sovereign  or  state  is  a  felony  punishable  by  the  law  of  England. 
This  statute  is  a  legislative  recognition  of  the  general  right  of  the 
sovereign  authority  in  foreign  states  to  the  assistance  of  the  laws 
of  this  country  to  protect  their  rights  as  to  the  regulation  of  their 
paper  money  as  well  as  their  coin,  and  to  punish,  by  the  law  of 
England,  offenses  against  that  power. 

The  friendly  relations  between  civilized  countries  require,  for 
their  safety,  the  protection  by  municipal  law  of  an  existing 
sovereign  right  of  this  kind  recognized  by  the  law  of  nations.  It 
appears  from  the  evidence  of  the  defendant,  Kossuth,  himself  that 
the  present  plaintiff  is  in  possession  of  the  supreme  power  in 
Hungary,  and  that  the  property  now  in  question,  which  this  de- 
fendant has  caused  to  be  manufactured  in  order,  at  some  future 
time,  to  issue  it  as  the  public  paper  money  of  the  State  of  Hun- 
gary, is  not  intended  to  be  immediately  used  for  that  purpose, 
because  of  the  existing  power  of  the  plaintiff.  But  it  also  appears 
that  the  paper  so  manufactured  is  now  in  the  possession  and  power 
of  both  the  defendants,  ready  to  be  used,  when  the  defendant, 


428  PROTECTION  OF  SOVEREIGN  INTERESTS 

Kossuth,  shall  think  fit,  for  a  purpose  adverse  to  the  existing 
right  of  the  plaintiff. 

The  manufactured  paper  in  question,  therefore,  is  property 
which  has  been  made  for  no  other  purpose,  and  can  be  used  for 
no  other  purpose,  except  one  hostile  to  the  sovereign  rights  of  the 
plaintiff.  It  is  not  property  of  a  kind  which,  like  warlike  weapons 
or  other  property,  may  be  lawfully  used  for  other  purposes.  And 
if  the  avowed  and  single  purpose,  for  which  this  property  is  now 
in  the  hands  of  the  defendants,  be  a  purpose  hostile  to  the  plain- 
tiff's rights,  if  this  court  were  to  refuse  its  interference,  the  refusal 
would  amount  to  a  decision  that  it  has  no  jurisdiction  to  protect 
the  legal  right  of  the  plaintiff  —  a  legal  right  recognized  by  the 
law  of  nations,  and,  therefore,  by  the  law  of  England. 

But  it  has  been  said  that  the  right  of  the  plaintiff  is  not  an 
absolute  right,  but  is  subject  to  the  control  of  the  Diet  of  Hungary. 
The  prerogative  rights  of  the  Crown  of  England  are  all  directly 
or  indirectly  subject  to  control  of  Parliament,  and  the  sovereign 
rights  in  most  other  nations  are  subject  to  some  control  or  limita- 
tion, yet  they  are  not  therefore  the  less  actual  rights;  and  it  is  at 
the  suit  of  the  sovereign  that  they  are  to  be  protected  by  the  law. 

Then  it  is  said  that  the  defendant,  Kossuth,  contemplates  the 
overthrow  of  the  existing  right  of  the  plaintiff,  and  that  when  it 
is  overthrown,  and  the  power  transferred  to  himself  or  to  some 
other  body,  which  shall  sanction  the  use  of  this  paper  as  the  current 
money  of  the  Kingdom  of  Hungary,  he  will  then  be  entitled  to 
use  it;  and  therefore  that  this  court  ought  not  now  to  interfere. 

To  this  argument  the  answer  is  that  this  court,  like  other  pub- 
lic tribunals,  can  deal  only  with  existing  laws  and  existing  govern- 
ments. Obedience  to  existing  laws  and  to  existing  governments, 
by  which  alone  the  laws  can  be  enforced,  are  purposes  essential 
to  the  distribution  of  justice,  and  to  the  maintenance  of  civil  so- 
ciety. Therefore,  if  by  the  existing  laws  the  plaintiff  has  the  right 
which  he  asserts,  and  if  the  defendants  have  made  and  have  now 
in  their  possession  the  property  in  question,  which  has  been  made 
and  now  is  in  their  hands  for  no  other  purpose  than  one  hostile 
to  the  legal  rights  of  the  plaintiff,  the  legal  right  of  the  plaintiff 
ought  to  be  protected  by  the  interference  of  this  court.  This 
right  of  the  plaintiff  is  clear  on  principle,  unless  the  court  is  to  aban- 


EMPEROR  OF  AUSTRIA  v.  DAY  AND  KOSSUTH       429 

don  its  protective  jurisdiction.  It  is  clear  also  upon  authority. 
In  the  case  of  Farina  v.  Silverlock  (i  K.  &  J.  509),  an  injunction 
was  granted  against  a  printer,  who  had  made  and  printed  papers 
which  he  had  in  his  possession,  merely  because  they  might  be 
used,  and  were  ready  to  be  used,  in  such  a  manner  as  to  violate 
the  legal  right  of  the  plaintiff,  although  they  were  not  in  fact 
actually  used  for  that  purpose. 

Foreign  states  at  peace  with  this  [country  have  always  been 
held  entitled  to  the  assistance  of  the  law  of  England  to  vindicate 
and  protect  their  rights,  and  to  punish  offenders  against  those 
acknowledged  public  privileges  recognized  by  the  law  of  nations. 
Even  the  sovereign  power,  under  a  revolutionary  government 
recognized  for  the  time  by  the  Crown  of  England  as  an  existing 
government,  has  had  its  rights  protected,  and  offenders  against 
those  rights  punished  by  prosecution  in  the  courts  of  England. 
The  prosecution  and  conviction  of  M.  Peltier,  for  a  libel  on  the 
First  Consul  of  France,  proceeded  on  this  principle.  In  earlier 
times  Lord  George  Gordon  was  tried  and  convicted  for  a  libel  on 
the  Queen  of  France. 

These  rights  of  foreign  powers  may  be  for  a  time  suppressed, 
and  the  law  may  be  silent  during  the  flagrance  of  rebellion  and 
revolution,  when  rights,  both  public  and  private,  are  overturned 
and  destroyed  during  the  crimes  and  calamities  of  civil  war.  But 
where,  as  in  the  present  case,  the  existing  rights  of  the  plaintiff, 
as  sovereign  of  Hungary,  are  recognized  by  the  Crown  of  Eng- 
land, the  relief  which  he  seeks  in  this  cause  is  for  the  protection 
of  a  legal  right  of  universal  public  importance  against  the  acts 
of  the  defendants. 

That  protection  can  only  be  effectually  afforded  by  the  relief 
prayed  for  in  this  suit;  and  there  must  be  a  decree  against  the 
defendants,  according  to  the  prayer  of  the  bill. 

Sir  Hugh  Cairns.  In  the  case  of  Hullett  v.  The  King  of  Spain, 
the  House  of  Lords  said  they  would  not  disparage  the  dignity 
of  the  defendent  by  giving  him  costs.  I  must  accept  the  same  rule 
in  this  case,  on  behalf  of  the  Emperor  of  Austria. 

The  Vice-Chancellor.    Certainly. 

(Extract  from  English  Reports,  Vice-Chancellor's  Court  [Lon- 
don, 1906],  vol.  LXVI,  pp.  263-86.) 


430  SLAVE  TRADE 

§53.   POLICE  ACTION  BY  COLLECTIVE  INTERVENTION 


THE  BLOCKADE  OF  ZANZIBAR   (1888-89) 

IN  1888-89  a  "very  anomalous"  blockade  of  the  coasts  of  Zan- 
zibar was  instituted  by  the  British  and  German  admirals,  by  order 
of  their  governments,  but  in  the  name  of  the  Sultan,  against  the 
importation  of  "materials  of  war  and  the  exportation  of  slaves." 
The  operation  "was  in  reality  a  measure  of  high  international 
police,  exercised,  directly  or  indirectly,  by  all  the  powers  of  West- 
ern Europe  who  were  interested  in  the  locality,  for  the  prevention 
of  a  traffic  generally  recognized  by  them  as  cruel  and  immoral." 
Italy  and  Portugal  aided  actively  in  the  blockade,  and  France  sent 
a  warship  to  visit  vessels  flying  the  French  flag.  Auxiliary  steps 
were  taken  on  the  mainland  by  the  Congo  State  and  the  Nether- 
lands. 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  vn, 
pp.  138-39,  citing  Holland:  Studies  in  International  Law,  pp.  139- 
40,  and  M.  Rolin-Jaequemyns,  in  the  Revue  de  Droit  Interna- 
tional, vol.  xxi,  p.  207,  to  whom  Holland  refers.) 


§54.   SLAVE  TRADE 

THE  CASE  OF  THE  BRIG  LAWRENCE  (1848) 

OPINION  of  Joshua  Bates,  Umpire,  January  4,  1855 : 
"The  umpire  appointed  agreeably  to  the  provisions  of  the  con- 
vention entered  into  between  Great  Britain  and  the  United  States 
on  the  8th  of  February,  1853,  for  the  adjustment  of  claims  by  a 
mixed  commission,  having  been  duly  notified  by  the  commission- 
ers under  the  said  convention  that  they  had  been  unable  to  agree 
upon  the  decision  to  be  given  with  reference  to  the  claim  of  the 
owners  of  the  brig  Lawrence,  Captain  York,  against  the  British 
Government,  and  having  carefully  examined  and  considered  the 
papers  and  evidence  produced  on  the  hearing  of  the  said  claim,  and 
having  conferred  with  the  said  commissioners  thereon,  hereby 


THE  CASE  OF  THE  BRIG  LAWRENCE  431 

reports  that  the  brig  Lawrence,  York,  master,  under  American 
colors  and  having  an  American  register  and  papers,  bound  from 
Havana  to  Cabenda,  in  Africa,  with  a  cargo  of  rum,  etc.,  having 
sprung  a  leak  and  put  into  Gallenas,  on  the  coast  of  Africa,  loth 
September,  1848,  and  being  unable  to  stop  the  leak  there,  it  was 
determined  to  proceed  to  Sierra  Leone,  where  they  could  beach 
the  vessel  and  repair  her.  She  arrived  at  Freetown  on  the  22d  Sep- 
tember and  on  the  25th  she  was  seized  and  libeled  in  the  Vice- 
Admiralty  Court  for  being  found  in  a  British  port  equipped  for  the 
slave  trade,  condemned,  and  the  vessel  and  cargo  decreed  forfeited 
to  the  Crown. 

"The  cargo  shipped  at  Havana  on  board  the  Lawrence  consisted 
of  60  pipes  of  rum,  116  half  pipes  of  rum,  30  barrels  of  flour,  4 
boxes  of  beads,  48  boxes  of  cigars,  i  box  woolen  caps,  10  barrels  of 
beans,  39  barrels  of  corn  meal,  5  barrels  of  pork,  5  barrels  of  beef, 
46  buckets,  2  packages  tinware,  which  by  charter  party  were  to  be 
delivered  at  Cabenda,  in  Africa,  for  a  freight  of  $3,250.  It  is  not 
denied  that  the  papers  were  in  order  as  an  American  vessel.  The 
crew,  excepting  one  man,  were  Spanish  and  could  not  speak  Eng- 
lish, nor  could  Captain  York  speak  Spanish.  There  were  two  super- 
cargoes, one  Spanish  and  one  French,  on  board.  Looking  at  the 
voyage  as  a  trading  operation,  it  appears  simply  absurd.  The 
whole  value  of  the  cargo  would  not  exceed  £600,  on  which  £700 
freight  was  to  be  paid.  But  looking  at  the  vessel  as  to  be  a  slaver 
whenever  the  opportunity  should  offer  so  to  employ  her,  the  cargo 
and  the  fittings  would  appear  well  arranged  for  the  business  and 
in  conformity  with  the  fittings  of  several  vessels  under  the  Ameri- 
can flag  that  had  been  overhauled  by  cruisers  and  suffered  to  pass 
on  account  of  the  flag,  but  were  soon  afterward  captured  with 
slaves  on  board  under  Spanish  or  Portuguese  colors. 

"The  African  slave  trade  at  the  time  of  this  condemnation, 
being  prohibited  by  all  civilized  nations,  was  contrary  to  the 
law  of  nations,  and  being  prohibited  by  the  laws  of  the  United 
States,  the  owners  of  the  Lawrence  could  not  claim  the  protec- 
tion of  their  own  government,  and  therefore,  in  my  judgment, 
can  have  no  claim  before  this  commission." 

(Extract  from  Moore:  International  Arbitrations,  vol.  m,  pp. 
2824-25.) 


432  MARITIME  JURISDICTION 

§55.   MARITIME   JURISDICTION 


THE  SCOTIA 

The  Supreme  Court  of  the  United  States,  1871 

THIS  case  came  on  appeal  to  the  United  States  Supreme  Court. 

The  Berkshire,  an  American  sailing  vessel,  collided  with  the 
British  steamer  Scotia,  of  the  Cunard  line,  in  mid-ocean  and  was 
sunk  and  totally  lost.  From  the  statement  of  the  case  and  the 
opinion  it  appears  that  Great  Britain  and  the  United  States  had 
both  adopted  the  same  regulations  in  regard  to  the  lights  for  steam- 
ships and  sailing  vessels  as  were  contained  in  the  British  Order  in 
Council  of  January  9,  1863,  authorized  by  virtue  of  the  Merchant 
Shipping  Amendment  Act  of  1862.  By  Act  of  April  29,  1864,  Con- 
gress had  made  a  similar  regulation  in  regard  to  the  carrying  of 
lights.  The  Scotia  was  admitted  to  have  complied  with  these 
regulations.  The  Berkshire,  however,  did  not  carry  the  red  and 
green  lights  on  her  port  and  starboard  side  as  required  by  the  Act, 
but  carried  only  a  single  white  light,  of  which  the  use  was  prohib- 
ited to  sailing  vessels  and  reserved  for  steamers  which  were  re- 
quired to  carry  it  at  the  masthead.  As  this  light  was  but  a  few 
feet  above  the  deck,  an  approaching  steamer,  believing  it  to  be  at 
the  masthead,  would  naturally  infer  that  the  vessel  carrying  it 
was  still  far  distant. 

The  appellants  representing  the  owners  of  the  sunken  vessel, 
recognizing  that  they  would  have  no  case  against  the  Scotia  if 
either  the  British  or  American  law  should  be  applied,  contended 
that  since  the  collision  was  between  ships  of  different  nations 
upon  the  high  seas  the  law  applicable  must  be  the  law  of  the  high 
sea,  that  is,  international  law. 

Associate  Justice  Strong,  after  a  careful  review  of  what  occurred 
and  declaring  that  no  country  could  legislate  on  the  high  seas  for 
vessels  of  another  nation,  discussed  the  intent  of  the  American 
navigation  laws  and  concluded  his  opinion  as  follows: 

"But  we  need  not  affirm  that  the  Berkshire  was  under  obligation 
to  show  colored  lights,  or  to  refrain  from  showing  a  white  light, 
merely  because  of  an  act  of  Congress,  nor  need  we  affirm  that  the 


THE  SCOTIA  433 

Scotia  can  protect  herself  by  setting  up  the  ship's  violation  of  that 
act.  Nor  is  it  necessary  to  our  conclusions  that  the  British  rules 
in  regard  to  lights  are  the  same  as  ours,  though  that  is  an  important 
consideration.  We  are  not  unmindful  that  the  English  Courts  of 
Admiralty  have  ruled  that  a  foreigner  cannot  set  up  against  a  Brit- 
ish vessel,  with  which  his  ship  has  collided,  that  the  British  vessel 
violated  the  British  mercantile  marine  act,  on  the  high  seas,  for 
the  reason,  as  given,  that  the  foreigner  was  not  bound  by  it,  inas- 
much as  it  is  beyond  the  power  of  Parliament  to  make  rules  appli- 
cable to  foreign  vessels  outside  of  British  waters.  This  decision 
was  made  in  1856,  in  the  case  of  the  Zollverein  (i  Swabey,  96).  A 
similar  rule  was  asserted  also  in  the  Dumfries  (ib.  63),  decided 
the  same  year;  in  the  Saxonia  (i  Lushington,  410),  decided  in 
the  High  Court  of  Admiralty  in  1858,  and  by  the  Privy  Council  in 
1862.  The  same  doctrine  was  laid  down  in  1858,  in  the  case  of 
Cope  v.  Doherty,  (4  Kay  &  Johnson,  367 ;  2  De  Gex  &  Jones,  626) 
and  in  the  Chancellor  (4  Law  Times,  627),  decided  in  1861.  All 
these  decisions  were  made  before  the  passage  of  the  Merchant 
Shipping  Amendment  Act,  which  took  effect  on  the  ist  day  of 
June,  1863.  By  that  act  the  same  rules  in  regard  to  lights  and  move- 
ments of  steamers  and  sailing  vessels  on  the  high  seas  were  adopted 
as  those  which  were  prescribed  by  the  Act  of  Congress  of  1864,  and 
by  the  same  act  it  was  provided  that  the  government  of  any 
foreign  state  might  assent  to  the  regulations  and  consent  to  their 
application  to  the  ships  of  such  state,  and  that  thereupon  the 
Queen,  by  Order  in  Council,  might  direct  that  such  regulations 
should  apply  to  ships  of  such  foreign  state  when  within  or  without 
British  jurisdiction.  The  act  further  provided  that  whenever  an 
Order  in  Council  should  be  issued  applying  any  regulation  made 
under  it  to  the  ships  of  any  foreign  country,  such  ships  should  in 
all  cases  arising  in  British  courts  be  deemed  to  be  subject  to  such 
regulations,  and  for  the  purpose  thereof  be  treated  as  British  ships. 
Historically,  we  know  that  before  the  close  of  the  year  1864,  nearly 
all  the  commercial  nations  of  the  world  had  adopted  the  same 
regulations  respecting  lights,  and  that  they  were  recognized  as 
having  adopted  them.  These  nations  were  the  following:  Austria, 
the  Argentine  Republic,  Belgium,  Brazil,  Bremen,  Chile,  Denmark, 
Ecuador,  France,  Great  Britain,  Greece,  Hamburg,  Hanover, 


434  MARITIME  JURISDICTION 

Hawaii,  Hayti,  Italy,  Lubeck,  Mecklenburg-Schwerin,  Morocco, 
Netherlands,  Norway,  Oldenburg,  Peru,  Portugal,  Prussia,  Roman 
States,  Russia,  Schleswig,  Spain,  Sweden,  Turkey,  United  States, 
and  Uruguay  —  almost  every  commercial  nation  in  existence. 
(See  Holt's  Rule  of  the  Road,  page  2.)  Had  this  libel  then  been 
filed  in  a  British  court,  the  Berkshire  must  have  been  found  solely 
in  fault,  because  her  white  light  and  her  neglect  to  exhibit  colored 
lights  signaled  to  the  Scotia  that  she  was  a  steamer,  and  directed 
the  Scotia  to  do  exactly  what  she  did. 

"It  must  be  conceded,  however,  that  the  rights  and  merits  of  a 
case  may  be  governed  by  a  different  law  from  that  which  controls 
a  court  in  which  a  remedy  may  be  sought.  The  question  still  re- 
mains, What  was  the  law  of  the  place  where  the  collision  occurred, 
and  at  the  tune  when  it  occurred?  Conceding  that  it  was  not  the 
law  of  the  United  States,  nor  that  of  Great  Britain,  nor  the  con- 
current regulations  of  the  two  governments,  but  that  it  was  the 
law  of  the  sea,  was  it  the  ancient  maritime  law,  that  which  existed 
before  the  commercial  nations  of  the  world  adopted  the  regulations 
of  1863  and  1864,  or  the  law  changed  after  those  regulations  were 
adopted?  Undoubtedly,  no  single  nation  can  change  the  law  of  the 
sea.  That  law  is  of  universal  obligation,  and  no  statute  of  one  or 
two  nations  can  create  obligations  for  the  world.  Like  all  the  laws 
of  nations,  it  rests  upon  the  common  consent  of  civilized  communi- 
ties. It  is  of  force,  not  because  it  was  prescribed  by  any  superior 
power,  but  because  it  has  been  generally  accepted  as  a  rule  of 
conduct.  Whatever  may  have  been  its  origin,  whether  in  the  usages 
of  navigation  or  in  the  ordinances  of  maritime  states,  or  in  both, 
it  has  become  the  law  of  the  sea  only  by  the  concurrent  sanction  of 
those  nations  who  may  be  said  to  constitute  the  commercial  world. 
Many  of  the  usages  which  prevail,  and  which  have  the  force  of 
law,  doubtless  originated  in  the  positive  prescriptions  of  some  single 
state,  which  were  at  first  of  limited  effect,  but  which  when  gener- 
ally accepted  became  of  universal  obligation.  The  Rhodian  law 
is  supposed  to  have  been  the  earliest  system  of  marine  rules.  It 
was  a  code  for  Rhodians  only,  but  it  soon  became  of  general 
authority  because  accepted  and  assented  to  as  a  wise  and  desirable 
system  by  other  maritime  nations.  The  same  may  be  said  of  the 
Amalphitan  table,  of  the  ordinances  of  the  Hanseatic  League,  and 


THE  SCOTIA  435 

o!  parts  of  the  marine  ordinances  of  Louis  XIV.  They  all  became 
the  law  of  the  sea,  not  on  account  of  their  origin,  but  by  reason  of 
then-  acceptance  as  such.  And  it  is  evident  that  unless  general 
assent  is  efficacious  to  give  sanction  to  international  law,  there 
never  can  be  that  growth  and  development  of  maritime  rules  which 
the  constant  changes  in  the  instruments  and  necessities  of  naviga- 
tion require.  Changes  in  nautical  rules  have  taken  place.  How 
have  they  been  accomplished,  if  not  by  the  concurrent  assent, 
express  or  understood,  of  maritime  nations?  When,  therefore,  we 
find  such  rules  of  navigation  as  are  mentioned  in  the  British  Orders 
in  Council  of  January  9,  1863,  and  in  our  Act  of  Congress  of  1864, 
accepted  as  obligatory  rules  by  more  than  thirty  of  the  principal 
commercial  states  of  the  world,  including  almost  all  which  have  any 
shipping  on  the  Atlantic  Ocean,  we  are  constrained  to  regard  them 
as  in  part  at  least,  and  so  far  as  relates  to  these  vessels,  the  laws  of 
the  sea,  and  as  having  been  the  law  at  the  time  when  the  collision 
of  which  the  libelants  complain  took  place. 

"This  is  not  giving  to  the  statutes  of  any  nation  extraterritorial 
effect.  It  is  not  treating  them  as  general  maritime  laws,  but  it  is 
recognition  of  the  historical  fact  that  by  common  consent  of  man- 
kind, these  rules  have  been  acquiesced  in  as  of  general  obligation. 
Of  that  fact  we  think  we  may  take  judicial  notice.  Foreign  munici- 
pal laws  must  indeed  be  proved  as  facts,  but  it  is  not  so  with  the 
law  of  nations. 

"The  consequences  of  this  ruling  are  decisive  of  the  case  before 
us.  The  violation  of  maritime  law  by  the  Berkshire  in  carrying  a 
white  light  (to  say  nothing  of  her  neglect  to  carry  colored  lights), 
and  her  carrying  it  on  deck  instead  of  at  her  masthead,  were  false 
representations  to  the  Scotia.  They  proclaimed  that  the  Berkshire 
was  a  steamer,  and  such  she  was  manifestly  taken  to  be.  The 
movements  of  the  Scotia  were  therefore  entirely  proper,  and  she 
was  without  fault. 

"Decree  affirmed,  with  costs." 

(Extract  from  Wallace:  Reports  of  the  Supreme  Court  of  the 
United  States,  vol.  xrv,  pp.  170-89.) 


436  FOREIGN  JUDGMENTS 

§56.  FOREIGN   JUDGMENTS 


HILTON  v.   GUYOT 

The  Supreme  Court  of  the  United  States,  1894 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opinion 
of  the  court  from  which  the  following  extract  is  taken: 

"It  appears,  therefore,  that  there  is  hardly  a  civilized  nation 
on  either  continent,  which,  by  its  general  law.  allows  conclusive 
effect  to  an  executory  foreign  judgment  for  the  recovery  of  money. 
In  France,  and  in  a  few  smaller  states,  —  Norway,  Portugal, 
Greece,  Monaco,  and  Hayti,  —  the  merits  of  the  controversy  are 
reviewed,  as  of  course,  allowing  to  the  foreign  judgment,  at  the 
most,  no  more  effect  than  of  being  prima  facie  evidence  of  the  jus- 
tice of  the  claim.  In  the  great  majority  of  the  countries  on  the 
continent  of  Europe  —  in  Belgium,  Holland,  Denmark,  Sweden, 
Germany,  in  many  cantons  of  Switzerland,  in  Russia  and  Poland, 
in  Roumania,  in  Austria  and  Hungary  (perhaps  in  Italy),  and  in 
Spain  —  as  well  as  in  Egypt,  in  Mexico,  and  in  a  great  part  of 
South  America,  the  judgment  rendered  in  a  foreign  country  is  al- 
lowed the  same  effect  only  as  the  courts  of  that  country  allow  to 
the  judgments  of  the  country  in  which  the  judgment  in  question 
is  sought  to  be  executed. 

"The  prediction  of  Mr.  Justice  Story  (in  sec.  618  of  his  Com- 
mentaries on  the  Conflict  of  Laws,  already  cited)  has  thus  been  ful- 
filled, and  the  rule  of  reciprocity  has  worked  itself  firmly  into  the 
structure  of  international  jurisprudence. 

"The  reasonable,  if  not  the  necessary,  conclusion  appears  to  us 
to  be  that  judgments  rendered  in  France,  or  in  any  other  foreign 
country,  by  the  laws  of  which  our  own  judgments  are  reviewable 
upon  the  merits,  are  not  entitled  to  full  credit  and  conclusive 
effect  when  sued  upon  in  this  country,  but  are  prima  facie  evidence 
only  of  the  justice  of  the  plaintiff's  claim. 

"In  holding  such  a  judgment,  for  want  of  reciprocity,  not  to  be 
conclusive  evidence  of  the  merits  of  the  claim,  we  do  not  proceed 
upon  any  theory  of  retaliation  upon  one  person  by  reason  of  in- 
justice done  to  another;  but  upon  the  broad  ground  that  inter- 


HILTON  r.  GUYOT  437 

national  law  is  founded  upon  mutuality  and  reciprocity,  and  that 
by  the  principles  of  international  law  recognized  in  most  civilized 
nations,  and  by  the  comity  of  our  own  country,  which  it  is  our 
judicial  duty  to  know  and  to  declare,  the  judgment  is  not  entitled 
to  be  considered  conclusive. 

"By  our  law,  at  the  time  of  the  adoption  of  the  Constitution, 
a  foreign  judgment  was  considered  as  prima  facie  evidence,  and 
not  conclusive.  There  is  no  statute  of  the  United  States,  and  no 
treaty  of  the  United  States  with  France,  or  with  any  other  nation, 
which  has  changed  that  law,  or  has  made  any  provision  upon  the 
subject.  It  is  not  to  be  supposed  that,  if  any  statute  or  treaty 
had  been  or  should  be  made,  it  would  recognize  as  conclusive  the 
judgments  of  any  country,  which  did  not  give  like  effect  to  our 
own  judgments.  In  the  absence  of  statute  or  treaty,  it  appears 
to  us  equally  unwarrantable  to  assume  that  the  comity  of  the 
United  States  requires  anything  more. 

"If  we  should  hold  this  judgment  to  be  conclusive,  we  should 
allow  it  an  effect  to  which,  supposing  the  defendants'  offers  to 
be  sustained  by  actual  proof,  it  would,  hi  the  absence  of  a 
special  treaty,  be  entitled  in  hardly  any  other  country  in  Christen- 
dom, except  the  country  in  which  it  was  rendered.  If  the  judgment 
had  been  rendered  in  this  country,  or  in  any  other  outside  of  the 
jurisdiction  of  France,  the  French  courts  would  not  have  executed 
or  enforced  it,  except  after  examining  into  its  merits.  The  very 
judgment  now  sued  on  would  be  held  inconclusive  in  almost  any 
other  country  than  France.  In  England,  and  in  the  colonies  sub- 
ject to  the  law  of  England,  the  fraud  alleged  in  its  procurement 
would  be  a  sufficient  ground  for  disregarding  it.  In  the  courts  of 
nearly  every  other  nation,  it  would  be  subject  to  reexamination, 
either  merely  because  it  was  a  foreign  judgment,  or  because  judg- 
ments of  that  nation  would  be  reexaminable  in  the  courts  of  France. 

"For  these  reasons,  in  the  action  at  law,  the  judgment  is  re- 
versed, and  the  cause  remanded  to  the  Circuit  Court  with  direc- 
tions to  set  aside  the  verdict  and  to  order  a  new  trial. 

"  For  the  same  reasons,  in  the  suit  in  equity  between  these  par- 
ties, the  foreign  judgment  is  not  a  bar,  and,  therefore,  the  decree 
dismissing  the  bill  is  reversed,  the  plea  adjudged  bad,  and  the  cause 
remanded  to  the  Circuit  Court  for  further  proceedings  not  incon- 


438  FOREIGN  JUDGMENTS 

sistent  with  this  opinion."    (Extract  from  United  States  Reports 
[1896],  vol.  159,  pp.  227-29.) 

The  opinion  of  the  court  was  by  a  bare  majority  of  five  to  four, 
and  its  views  were  contested  in  a  vigorous  minority  opinion  by 
Chief  Justice  Fuller,  with  whom  concurred  Associate  Justices 
Harlan,  Brewer,  and  Jackson.  The  opening  paragraph  of  the  dis- 
senting opinion  is  as  follows: 

"Plaintiffs  brought  their  action  on  a  judgment  recovered  by 
them  against  the  defendants  in  the  courts  of  France,  which  courts 
had  jurisdiction  over  person  and  subject-matter,  and  in  respect  of 
which  judgment  no  fraud  was  alleged,  except  in  particulars  con- 
tested in  and  considered  by  the  French  courts.  The  question  is 
whether  under  these  circumstances,  and  in  the  absence  of  a  treaty 
or  act  of  Congress,  the  judgment  is  reexaminable  upon  the  merits. 
This  question  I  regard  as  one  to  be  determined  by  the  ordinary 
and  settled  rule  in  respect  of  allowing  a  party,  who  has  had  an  op- 
portunity to  prove  his  case  in  a  competent  court,  to  retry  it  on  the 
merits,  and  it  seems  to  me  that  the  doctrine  of  res  judicata  appli- 
cable to  domestic  judgments  should  be  applied  to  foreign  judg- 
ments as  well,  and  rests  on  the  same  general  ground  of  public 
policy  that  there  should  be  an  end  of  litigation."  (Extract  from 
Hilton  v.  Guyot,  United  States  Reports,  vol.  159,  p.  229.) 

The  Chief  Justice  in  the  course  of  his  opinion  severely  condemns 
the  retaliatory  doctrine  upon  which  the  majority  opinion  of  the 
court  was  based: *  "I  cannot  yield  my  assent  to  the  proposition 
that  because  by  legislation  and  judicial  decision  in  France  that 

1  Compare  (Moore,  Digest  of  International  Law,  vol.  iv,  pp.  102-10):  "On  the 
same  day  the  court  sustained  a  Canadian  judgment,  which  the  defendant  sought  to 
attack  on  the  ground  that,  although  he  had  appeared  in  the  action,  he  did  not  appear 
at  the  trial,  and  that  the  judgment  was  entered  against  him  in  his  absence,  without 
a  full  examination  of  the  merits.  (Ritchie  v.  McMullen,  159  U.S.  235.) " 

Although  Professor  Moore  in  his  Digest  has  given  extracts  from  Hilton  v.  Guyot 
as  decided,  in  his  lectures  he  has  criticised  the  majority  opinion  on  the  ground 
"  that  it  leaves  the  courts  without  any  certain  criterion  and  may  result  in  their 
refusing  to  accept  the  judgments  of  countries  that  have  a  highly  developed  judicial 
system  while  accepting  the  judgments  of  tribunals  in  whose  decisions  there  is  less 
reason  to  feel  confidence." 

The  matter  of  the  execution  of  foreign  judgments  relates  to  the  whole  question  of 
private  international  law  (conflict  of  laws)  —  one  of  the  most  important  and  one  of 
the  most  difficult  in  the  whole  realm  of  jurisprudence.  The  reader  is  referred  to  the 
remarkable  discussion  by  Westlake:  International  Law,  part  i,  Peace  (Cambridge, 
1910),  pp.  246-52. 


THE  MERCHANT  SHIPPING  ACT  439 

effect  is  not  there  given  to  judgments  recovered  in  this  country 
which,  according  to  our  jurisprudence,  we  think  should  be  given 
to  judgments  wherever  recovered  (subject,  of  course,  to  the  recog- 
nized exceptions),  therefore  we  should  pursue  the  same  line  of 
conduct  as  respects  the  judgments  of  French  tribunals.  The  appli- 
cation of  the  doctrine  of  res  judicata  does  not  rest  in  discretion;  and 
it  is  for  the  government,  and  not  for  its  courts,  to  adopt  the  prin- 
ciple of  retorsion,  if  deemed  under  any  circumstances  desirable  or 
necessary."  (Dissenting  opinion  of  Chief  Justice  Fuller  in  Hilton 
v.Guyot,  United  States  Reports,  Supreme  Court,  vol.  159,  p.  234.) 


§  57.  PROTECTION  OF  THE  LIFE  AND  LIBERTY  OF  NATION- 
ALS OF  OTHER  STATES 


THE  MERCHANT  SHIPPING  ACT  (1876) 

DURING  the  debates  in  the  British  Parliament  in  1876  upon  the 
bill  to  amend  the  Merchant  Shipping  Acts,  there  was  a  divergence 
of  opinion  as  to  the  right  to  apply  British  legislation  to  foreign 
shipping.  One  member  (Mr.  T.  E.  Smith)  by  way  of  amendment 
to  the  clause  empowering  the  authorities  to  detain  unsafe  ships, 
proposed  that  this  legislation  should  be  extended  to  foreign  ships: 
"To  the  objection  that  the  House  would  go  beyond  its  province  in 
legislating  for  foreign  ships,  he  replied,  we  already  legislated  for 
them  in  regard  to  passengers  and  surely  the  lives  of  sailors  would 
justify  equal  interference,  and  such  interference  was  already  found 
practicable  in  Canada  and  the  United  States.  Many  ships  sailing 
under  foreign  flags  were  just  the  ships  the  House  desired  to  deal 
with;  they  sailed  under  foreign  flags  to  evade  existing  British 
regulations,  and  the  number  of  such  ships  would  be  increased  if 
this  legislation  were  confined  to  British  ships."  (Hansard's  Par- 
liamentary Debates  [1876],  vol.  228,  p.  1148.) 

The  President  of  the  Board  of  Trade  (Sir  Charles  Adderley),  who 
was  in  charge  of  the  bill,  admitted  the  force  of  this  argument,  but 
found  himself  unable  to  accept  the  amendment.  "No  doubt,"  he 
said,  "we  should  as  far  as  possible  make  all  necessary  government 


440  PROTECTION,  ETC.,  OF  NATIONALS  OF  OTHER  STATES 

interferences  weigh  equally  on  our  foreign  competitors  and  our- 
selves. ...  As  a  general  rule  foreign  ships  in  our  ports  were  sub- 
ject to  our  municipal  law  and  their  crews  were  amenable  to  our 
criminal  law.  Practically,  however,  our  courts  did  not  deal  with 
matters  affecting  the  discipline  and  management  of  a  foreign 
vessel  or  any  concerns  of  her  own,  but  only  with  what  might  affect 
general  law,  and  then  only  in  extreme  cases,  and  that  with  refer- 
ence always  to  their  consul.  When  a  foreign  ship  took  emigrants 
from  an  English  port,  the  government  saw  that  our  rules  were 
observed;  but  it  was  our  own  interest  which  was  then  looked  after, 
as  it  was  when  a  foreign  state  took  precautions  against  the  land- 
ing of  infected  emigrants  upon  its  shores.  .  .  .  The  proposition 
of  the  honorable  member  for  Tynemouth  went  much  further.  He 
proposed  to  say  to  foreign  ships,  'We  will  detain  you  if  we  think 
you  overloaded  or  in  any  way  unseaworthy,  and  you  shall  not 
drown  your  men  by  running  risks  which  we  do  not  allow  our  ships 
to  run.'  But  that  would  be  a  great  stretch  of  assumed  jurisdic- 
tion over  foreign  subjects,  and  it  would  be  a  strong  measure,  in 
order  to  enforce  it,  to  inflict  penalties  upon  foreigners.  ...  If  the 
proposal  were  agreed  to,  we  must  be  prepared  for  retaliation." 
(Parliamentary  Debates  [1876],  vol.  228,  pp.  1149-50.) 

The  amendment  in  the  form  presented  was  not  carried,  but 
jurisdiction  in  certain  cases  of  overloading  was  extended  over 
foreign  vessels  by  section  13  of  the  act,  as  follows: 

"Where  a  foreign  ship  has  taken  on  board  all  or  any  part  of  her 
cargo  at  a  port  in  the  United  Kingdom,  and  is  whilst  at  that  port 
unsafe  by  reason  of  overloading  or  improper  loading,  the  provi- 
sions of  this  act  with  respect  to  the  detention  of  ships  shall  apply 
to  that  ship  as  if  she  were  a  British  ship,  with  the  following  modi- 
fications. .  .  ."  (English  Law  Reports  [1876],  Statutes,  vol.  xi, 
p.  498.) 

Later  in  the  session  the  Chancellor  of  the  Exchequer  (Sir  Staf- 
ford Northcote)  announced  that  it  was  the  intention  of  the  gov- 
ernment to  propose  an  additional  clause  with  regard  to  deckloads, 
and  that  such  clause  would  apply  to  foreign  as  well  as  to  British 
ships.  But  at  the  same  time  he  acknowledged  "it  was  a  serious 
and  difficult  matter  how  to  deal  with  foreign  ships,  in  consequence 
of  the  questions  that  might  arise  in  connection  with  international 


THE  MERCHANT  SHIPPING  ACT  441 

law  from  British  shipping  going  into  the  ports  of  all  the  nations  in 
the  world  and  that  the  same  rules  and  laws  this  country  might 
lay  down  for  the  treatment  of  foreign  ships  in  our  ports  might  be 
applied  to  British  ships  in  foreign  ports."  (Parliamentary  Debates 
[1876],  vol.  228,  p.  1781.) 

Sir  Henry  James  thought  that  the  government  had  acted  boldly 
and  courageously,  but  that  the  clause  was  a  serious  one:  "For 
the  first  time  we  were  setting  the  example  of  legislating  for  offenses 
committed  out  of  our  own  jurisdiction;  because  the  offense  would 
be  committed  when  the  cargo  was  placed  on  deck,  and  by  persons 
who  were  ignorant  of  it.  ...  Again,  the  penalty  of  the  clause 
upon  the  foreigner  would  substantially  mean  imprisonment. 
.  .  .  Foreigners  in  that  way  would  learn  that  they  would  be  sent 
to  prison,  though  what  they  had  done  was  no  breach  of  their  own 
law,  and  simply  because  they  had  broken  a  law  of  our  own  of  which 
they  had  never  heard."  (Parliamentary  Debates  [1876],  vol.  228, 
p.  1925.) 

The  Chancellor  of  the  Exchequer  replied  that,  "although  at 
first  sight  it  did  appear  that  any  attempt  to  deal  with  foreign  ships 
might  carry  them  to  a  dangerous  extent,  the  more  he  had  consid- 
ered the  subject,  the  more  he  felt  that  with  care  and  caution,  by 
giving  foreign  countries  reasonable  notice  of  their  proceedings,  and 
by  exercising  reasonable  fairness  in  the  execution  of  the  law,  the 
danger  was  not  one  that  need  be  attended  with  very  serious  conse- 
quences. .  .  .  The  government  felt  that  in  bringing  forward  the 
clause,  which  they  did  with  considerable  anxiety,  they  were  doing 
what  was  best  for  the  promotion  of  the  great  objects  of  the  bill 
and  for  the  interests  of  the  country."  (Parliamentary  Debates 
[1876],  vol.  228,  p.  1932.) 

As  the  legislation  respecting  deckloads  was  to  apply  only  to 
cargoes  of  timber,  the  Scandinavian  shipping  interests  were  more 
affected  than  any  other  foreigners.  Accordingly,  when  an  earlier 
amendment  to  the  same  effect  was  proposed  by  Mr.  Plimsoll,  the 
Government  of  Norway  and  Sweden,  in  a  note  of  June  16,  1876, 
indicated  its  views,  in  part,  as  follows: 

"...  The  definite  adoption  of  the  amendment  would  have  the 
inevitable  result  of  increasing  the  freight  of  timber  cargoes  dur- 
ing a  great  part  of  the  year,  but  this  inconvenience,  although  con- 


442  PROTECTION,  ETC.,  OF  NATIONALS  OF  OTHER  STATES 

siderable,  ought  naturally  to  be  tolerated,  if  the  restriction  im- 
posed by  the  House  of  Commons  is  required  in  the  interests  of 
humanity. 

"The  Government  of  the  King,  after  an  examination  of  the 
question  undertaken  some  years  ago,  and  recently  resumed,  do  not 
believe  that  there  is  any  necessity  for  proceeding  with  such  a 
rigorous  measure.  .  .  . 

"It  is  true  that  the  right  limit  is  difficult  to  fix,  but  the  King's 
Government,  knowing  that  Her  Majesty's  Government  have  care- 
fully considered  the  circumstances  before  fixing  the  maximum  of 
three  feet,  earnestly  desire  that  Parliament  should  stop  at  that 
point,  and  that  they  trust  that  more  mature  consideration  will 
cause  the  House  of  Commons  to  modify  its  decision.  .  .  . 

"If  this  amendment  were  the  result  of  a  complete  and  pro- 
found examination  of  the  question,  the  King's  Government  would 
not  have  made  themselves  the  organ  of  the  interests  affected 
by  its  adoption,  but  not  being  able  to  allow  that  the  measure 
proposed  by  Mr.  Plimsoll  is  justified  in  this  way,  the  Govern- 
ment of  the  King  would  be  glad  to  think  that  Her  Majesty's 
Government  will  kindly  take  into  consideration  the  foregoing 
observation."  (Parliamentary  Accounts  and  Papers  [1876],  vol. 
66,  pp.  96-97.) 

As  finally  enacted,  section  24  is  as  follows: 

"After  the  first  day  of  November,  one  thousand  eight  hundred 
and  seventy  six,  if  a  ship,  British  or  foreign,  arrives  between  the 
last  day  of  October  and  the  sixteenth  day  of  April  in  any  year  at 
any  port  in  the  United  Kingdom  from  any  port  out  of  the  United 
Kingdom,  carrying  as  deck  cargo,  that  is  to  say,  in  any  uncovered 
space  upon  deck,  or  in  any  covered  space  not  included  in  the  cubi- 
cal contents  forming  the  ship's  registered  tonnage,  any  wood 
goods  coming  within  the  following  descriptions  .  .  .  the  master 
of  the  ship,  and  also  the  owner,  if  he  is  privy  to  the  offense,  shall 
be  liable  to  a  penalty  not  exceeding  five  pounds  for  every  hundred 
cubic  feet  of  wood  goods  carried  hi  contravention  of  this  section, 
and  such  penalty  may  be  recovered  by  action  or  on  indictment  or 
to  an  amount  not  exceeding  one  hundred  pounds  (whatever  may 
be  the  maximum  penalty  recoverable)  on  summary  conviction." 
(English  Law  Reports  [1876],  Statutes,  vol.  xi,  pp.  502-03.) 


THE  MERCHANT  SHIPPING  ACT  443 

In  regard  to  the  application  of  the  act  to  American  vessels, 
Moore,  in  his  Digest  of  International  Law  (vol.  n,  pp.  282-83), 
says: 

"September  28,  1876,  Sir  Edward  Thornton,  British  Minister  at 
Washington,  communicated  to  the  Department  of  State  a  copy  of 
the  Merchant  Shipping  Act,  1876,  and  called  attention  to  the  clause 
with  respect  to  the  overloading  and  improper  loading  of  foreign 
ships  in  the  United  Kingdom,  and  particularly  to  section  24,  im- 
posing certain  penalties  in  case  of  the  arrival  of  a  ship,  whether 
British  or  foreign,  between  the  last  day  of  October  and  the  i6th  of 
April,  at  any  port  of  the  United  Kingdom  from  any  port  out  of  the 
United  Kingdom,  carrying  deck  cargo  in  violation  of  the  act;  and 
in  subsequent  notes  of  January  22  and  29,  1877,  Sir  Edward  trans- 
mitted reports  made  by  officers  of  the  Board  of  Trade  with  refer- 
ence to  the  alleged  infraction  of  section  24  by  certain  American 
vessels. 

.  "The  Department  of  State  replied  that,  as  attention  was  thus 
particularly  called  to  the  questions  under  section  24,  it  seemed 
proper  to  state  that  the  right  to  impose  penalties  on  the  master  or 
owner  of  an  American  vessel,  sailing  from  a  port  of  the  United 
States,  for  the  manner  in  which  the  cargo  was  laden  or  stored,  was 
of  so  doubtful  a  character  that,  however  wise  or  beneficent  the 
intent  of  the  act  might  be,  the  Government  of  the  United  States 
'cannot  but  invite  the  attention  of  Her  Majesty's  Government 
particularly  thereto,  before  further  steps  are  taken  in  Great 
Britain  to  enforce  obedience  to  the  law  in  these  particular  cases, 
and  before  any  steps  be  taken  toward  the  enforcement  of  fines  in 
these  or  similar  cases.' 

"The  representations  of  the  United  States  'appear  to  have  re- 
ceived the  careful  attention  of  the  Government  of  Great  Britain, 
and  toward  the  dose  of  the  year  1877,  the  Minister  of  the  United 
States  at  London  received  a  note  from  Lord  Derby,  justifying  the 
provisions  of  the  act  adverted  to,  which  had  been  specially  made 
the  subject  of  complaint,  as  not  inconsistent  wkh  the  principles  of 
international  law,  or  with  the  practice  of  nations  in  such  matters,' 
and  expressing  the  hope  that  the  United  States  would  'yield  the 
provisions  of  the  act  mentioned  a  friendly  support,  by  enjoining  its 
observance  on  the  part  of  American  shippers  and  owners  of  vessels, 


444  PROTECTION,  ETC.,  OF  NATIONALS  OF  OTHER  STATES 

in  the  interest  of  humanity.'  The  subject  thereafter  'failed  to  be- 
come one  of  special  action  on  the  part  of  the  United  States.' 

"In  1886,  the  British  Minister  having  reported  the  arrival  of  an 
American  vessel  in  London  with  a  deck  cargo  of  heavy  wood  in 
contravention  of  section  24,  he  was  advised  that  the  Secretary  of 
the  Treasury  had  called  the  attention  of  collectors  of  customs  to 
the  law,  with  a  view  to  notifying  masters  of  vessels  sailing  from  the 
United  States  of  its  provisions.  It  was  observed,  however,  that  it 
was  not  to  be  understood  that  the  notification  would  reach  all  such 
masters,  and  that  therefore  the  action  of  Her  Majesty's  Govern- 
ment in  such  cases  arising  in  the  future  should  not  be  based  on  the 
supposition  that  the  masters  of  all  American  vessels  were  ac- 
quainted with  the  law." 

The  enactments  relating  to  merchant  shipping  were  consoli- 
dated by  the  Act  of  1894,  the  provisions  of  the  Act  of  1876  re- 
specting foreign  shipping  remaining  in  effect  unchanged.  (Statutes 
[1894],  §§  451,  462.)  In  consequence,  however,  of  the  report, 
in  1905,  of  a  select  committee  on  the  statutory  requirements  for 
foreign  ships,  Parliament  passed  an  act  in  1906  amending  the 
Merchant  Shipping  Acts  by  the  addition,  amongst  others,  of 
several  provisions  affecting  foreign  shipping.  The  British  load- 
line  provisions  were  made  to  apply  to  foreign  ships  "while  they 
are  within  any  port  of  the  United  Kingdom,"  the  power  to  detain 
unsafe  ships  of  foreign  nationality  was  extended  to  include  cases 
of  defective  equipment,  and  power  was  given  to  apply  rules  as 
to  life-saving  appliances  to  foreign  ships  "provided  that  His 
Majesty  may  by  Order  in  Council  direct  that  these  provisions 
shall  not  apply  to  any  ship  of  a  foreign  country  in  which  the  pro- 
visions in  force  relating  to  life-saving  appliances  appear  to  His 
Majesty  to  be  as  effective  as  the  provisions  of  Part  v  of  the  princi- 
pal act,  on  proof  that  this  provision  was  complied  with  in  the  case 
of  that  ship."  (Statutes  [1905-06],  pp.  248-49.)  But  the  most 
significant  extension  of  jurisdiction  in  1906  was  that  laid  down 
in  the  section  relating  to  foreign  ships  carrying  cargoes  of  grain, 
as  follows: 

"If  after  the  first  day  of  October,  one  thousand  nine  hundred 
and  seven,  a  foreign  ship  laden  with  grain  cargo  arrives  at  any 
port  in  the  United  Kingdom  having  the  grain  cargo  so  loaded 


THE  JEWS  IN  PERSIA  445 

that  the  master  of  the  ship,  if  the  ship  were  a  British  ship,  would 
be  liable  to  a  penalty  under  the  provisions  of  Part  v  of  the  princi- 
pal act  relating  to  the  carriage  of  grain,  the  master  of  that  foreign 
ship  shall  be  liable  to  a  fine  not  exceeding  three  hundred  pounds." 
(Statutes  [1905-06],  p.  248.) 

The  provisions  respecting  deckloads  of  timber  remain  sub- 
stantially as  in  1876. 

On  October  13,  1910,  an  order  in  council  was  issued  exempting 
Swedish  vessels  complying  with  Swedish  regulations  from  deten- 
tion for  non-compliance  with  the  Merchant  Shipping  Acts  as  to 
overloading,  as  follows: 

"Whereas  the  Board  of  Trade  have  certified  that  certain  statu- 
tory regulations  which  have  been  approved  by  the  Swedish  Gov- 
ernment relating  to  overloading,  so  far  as  regards  the  assignment 
of  loadlines  to  Swedish  ships,  are  equally  effective  with  the  cor- 
responding regulations  in  force  in  this  country  respecting  the 
assignment  of  loadlines  to  British  merchant  ships: 

"Now,  therefore,  His  Majesty  in  Council  doth  direct  that  on 
proof  that  Swedish  ships  have  complied  with  the  aforesaid  Swed- 
ish Regulations,  such  ships  shall  not,  when  hi  ports  of  the  United 
Kingdom,  be  liable  to  detention  for  non-compliance  with  the 
provisions  of  the  Merchant  Shipping  Acts  relating  to  overload- 
ing, nor  shall  there  arise  any  liability  to  any  fine  or  penalty  which 
would  otherwise  arise  for  non-compliance  with  those  provisions." 
(British  and  Foreign  State  Papers,  vol.  103,  p.  165.) 


THE  JEWS  IN  PERSIA  (1897) 

IN  May,  1897,  the  Minister  of  the  United  States  at  Teheran 
interposed  unofficially  his  good  offices  in  behalf  of  the  Jews  in  that 
city,  who  were  then  being  subjected  to  mob  violence  at  the  hands 
of  the  Mohammedans.  His  course  was  approved  with  the  state- 
ment that  his  "good  offices  in  this  somewhat  delicate  question 
seem  to  have  been  discreetly  used  in  the  interest  of  common  hu- 
manity and  in  accordance  with  the  precepts  of  civilization." 

(Taken  textually  from  Moore:  Digest  of  International  Law,  vol. 
iv,  p.  592.) 


446  SUCCOR 

§58.   SUCCOR 


UNITED  STATES  AND  ITALIAN  EARTHQUAKES  (1908) 
Ambassador  Griscom  to  the  Secretary  of  State 

[Telegram] 

AMERICAN  EMBASSY, 

Rome,  December  29,  1908. 

A  terribly  disastrous  earthquake  occurred  yesterday  in  Sicily 
and  southern  Italy.  The  town  of  Messina  is  said  to  be  entirely 
destroyed.  There  are  no  official  estimates  of  mortality,  but  the 
newspapers  announce  50,000  killed.  I  saw  the  King  this  morning 
before  he  left  for  the  scene  and  expressed  to  him  the  heartfelt 
sympathy  of  the  President  and  the  American  people.  He  informed 
me  that  the  latest  news  is  that  fires  are  everywhere  adding  to  the 
disaster.  I  am  trying  to  obtain  news  of  our  consulate  at  Messina 
and  of  other  Americans  who  may  have  suffered. 

GRISCOM. 

President  Roosevelt  to  the  King  of  Italy 

[Telegram] 

WASHINGTON,  December  29, 1908. 

With  all  my  countrymen,  I  am  appalled  by  the  dreadful  calam- 
ity which  has  befallen  your  country.  I  offer  my  sincerest  sym- 
pathy. American  National  Red  Cross  has  issued  appeal  for 
contributions  for  the  sufferers  and  notified  me  that  they  will  im- 
mediately communicate  with  the  Italian  Red  Cross. 

THEODORE  ROOSEVELT. 

Ambassador  Griscom  to  the  Secretary  of  State 

[Telegram] 

AMERICAN  EMBASSY, 
Rome,  December  30,  1908. 

Having  received  no  word  from  consul  at  Messina  and  Palermo, 
have  asked  the  Foreign  Office  to  furnish  me  information.  They 
have  promised  to  use  every  effort  through  their  army  and  navy 


UNITED  STATES  AND  ITALIAN  EARTHQUAKES      447 

officers  to  obtain  immediate  news.  British  Consul  at  Messina  is 
reported  injured  and  his  wife  and  child  dead.  It  is  reported  that 
ninety  Americans  were  in  the  Hotel  Trinacria  at  Messina,  which 
is  reported  totally  destroyed.  It  is  known  that  some  of  the  guests 
escaped. 

The  Foreign  Office  informs  me  that  several  foreign  nations  are 
hurrying  warships  to  the  scene  to  offer  assistance.  I  think  it 
would  be  highly  appreciated  if  we  sent  one  or  two  warships  at 
earliest  possible  moment.  Much  assistance  might  be  rendered 
American  citizens.  Will  you  authorize  sending  Naples  Vice- 
Consul  to  Messina  immediately? 

GRISCOM. 

The  Acting  Secretary  of  State  to  Ambassador  Griscom 

[Telegram] 

DEPARTMENT  or  STATE, 
Washington,  December  30,  1908. 

The  National  Red  Cross  will  cable  to-morrow  for  account  of  the 
Italian  Red  Cross  $50,000  for  the  relief  of  the  earthquake  sufferers. 

BACON. 

The  Acting  Secretary  of  State  to  Ambassador  Griscom 

[Telegram] 

DEPARTMENT  OF  STATE, 
Washington,  December  37,  1908. 

Regret  no  warships  could  reach  Italy  before  the  arrival  of  the 
fleet  in  those  waters  about  January  14,  about  which  we  will  cable 
you  further.  Scorpion  ordered  last  night  from  Constantinople. 
You  may  possibly  find  her  of  use  in  rendering  assistance  to  Ameri- 
can citizens  or  others  in  distress  or  to  facilitate  communication. 
Telegram  3ist  received.  May  draw  for  $5,000  if  necessary. 

BACON. 

Ambassador  Griscom  to  the  Secretary  of  State 

[Telegram] 

AMERICAN  EMBASSY, 

Rom*,  December  jr,  1908. 

The  Prime  Minister  has  invited  me  to  proceed  to  Messina  and 
offered  steamship  accommodations  from  Naples.  I  have  accepted 


448  SUCCOR 

the  offer,  in  order  to  avail  of  exceptional  opportunity  of  getting 
transportation  for  two  or  three  consular  officers  and  to  profit  by 
special  opportunities  which  are  offered  me  for  obtaining  and  send- 
ing news.  I  leave  Rome  January  i,  taking  with  me  Vice-Consul 
Cutting  from  Milan,  and  will  place  him  temporarily  in  charge  of 
consulate  at  Messina  and  secure  recognition  of  Italian  Govern- 
ment; also  taking  interpreter  of  the  embassy  and  one  of  the  staff 
of  Naples  Consulate,  and  Winthrop  Chanler,  a  private  citizen, 
to  do  special  work  searching  for  and  relieving  American  citizens. 
As  soon  as  I  have  organized  and  distributed  the  work  I  will  return 
to  Rome.  Expect  to  be  absent  few  days  only.  I  would  be  glad  to 
have  a  few  thousand  dollars  in  case  necessary  for  relieving  Ameri- 
cans. 

A  newspaper  telegram  this  morning  from  Messina  states  that 
Lupton  is  dead,  as  well  as  Consul  Cheney  and  family  and  Vice- 
Consul  Pierce  and  family.  The  nephew  of  the  German  Consul  at 
Messina,  on  arrival  at  Naples,  confirms  death  of  Consul  Cheney 
and  family. 

The  Foreign  Office  this  morning  consider  that  the  estimate  of 
100,000  dead  is  not  exaggerated. 

The  Foreign  Office  informs  me  that  foreign  aid  for  sufferers  will 
be  gratefully  accepted,  owing  to  immensity  of  disaster. 

GRISCOM. 

The  Acting  Secretary  of  State  to  Ambassador  Griscom 

[Telegram] 

DEPARTMENT  OF  STATE, 
Washington,  December  31,  1908. 

American  Red  Cross  desire  following  delivered  to  Italian  Red 
Cross: 

"Please  advise  if  clothing,  food,  desired  from  America.  Cable 
our  expense,  brief  statement,  character,  magnitude  Italian  Red 
Cross  relief  operations.  Red  Cross,  Washington,  or  through 
American  Embassy." 

BACON. 


UNITED  STATES  AND  ITALIAN  EARTHQUAKES       449 
The  Acting  Secretary  of  State  to  Ambassador  Griscom l 

[Telegram] 

DEPARTMENT  OP  STATE, 
Washington,  December  j/,  1908. 

Draw  on  Secretary  of  State  for  $70,000  and  pay  to  Italian  Red 
Cross  for  relief  of  sufferers,  taking  duplicate  receipts.  Fifty 
thousand  contributed  by  American  Red  Cross  and  $20,000  by 
Louis  Klopsch,  of  Christian  Herald. 

BACON. 

(Foreign  Relations  of  the  United  States,  ipio,  pp.  490-501.) 

1  The  American  Red  Cross,  between  December  31, 1908,  and  November  23, 1009, 
transmitted  through  the  State  Department,  and  other  channels  of  communication, 
the  sum  of  $90,755.69  for  the  relief  of  the  earthquake  sufferers.  The  Christian  Herald 
transmitted  through  the  Department  of  State  $35,000.  (Foreign  Relations  of  the 
United  States,  iyzo,  p.  501.) 


CHAPTER   XI 

COOPERATIVE  ACTION  BETWEEN  A  GROUP  OF 
STATES  FOR  THE  PROTECTION  OF  THEIR  COM- 
MON INTERESTS 


§  59.  INTERNATIONAL  COMMISSIONS  FOR  THE  REGULATION 

OF  RIVERS 


NAVIGATION  OF  EUROPEAN  RIVERS   (1814-15) 

THE  "navigation  of  the  Rhine,  from  the  point  where  it  becomes 
navigable  unto  the  sea,  and  vice  versa,"  was,  by  the  Peace  of  Paris 
of  May  30, 1814,  declared  to  be  "free,  so  that  it  can  be  interdicted 
to  no  one;"  and  it  was  provided  that  at  the  congress  to  be  held 
at  Vienna  "attention"  should  "be  paid  to  the  establishment  of 
the  principles  according  to  which  the  duties  to  be  raised  by  the 
states  bordering  on  the  Rhine  may  be  regulated,  in  the  mode  most 
impartial  and  the  most  favorable  to  the  commerce  of  all  nations." 
And  it  was  further  stipulated  that  "the  future  congress,  with  a 
view  to  facilitate  communication  between  nations,  and  continu- 
ally to  render  them  less  strangers  to  each  other,"  should  "likewise 
examine  and  determine  in  what  manner  the  above  provisions  can 
be  extended  to  other  rivers  which  in  their  navigable  course  sepa- 
rate or  traverse  different  states." 

By  the  Treaty  of  Vienna  of  June  9,  1815,  the  powers  whose 
states  were  "separated  or  traversed  by  the  same  navigable  river" 
engaged  "to  regulate,  by  common  consent,  all  that  regards  its 
navigation,"  and  for  this  purpose  to  name  commissioners  who 
should  adopt  as  the  bases  of  then-  proceedings  certain  principles, 
the  chief  of  which  was  that  the  navigation  of  such  rivers,  "along 
their  whole  course,  .  .  .  from  the  point  where  each  of  them  be- 
comes navigable  to  its  mouth  shall  be  entirely  free,  and  shall  not, 


UNIVERSAL  POSTAL  UNION  451 

in  respect  to  commerce,  be  prohibited  to  any  one,"  subject  to 
regulations  of  police.  In  order  to  assure  the  application  of  this 
principle,  articles  were  inserted  expressly  regulating  in  certain 
respects  the  free  navigation  of  the  Rhine;  and  it  was  provided  that 
"the  same  freedom  of  navigation"  should  "be  extended  to  the 
Necker,  the  Mayne,  the  Moselle,  the  Meuse,  and  the  Scheldt, 
from  the  point  where  each  of  them  becomes  navigable  to  their 
mouths."  And  in  order  to  "establish  a  perfect  control"  over  the 
regulation  of  the  navigation,  and  to  "constitute  an  authority 
which  may  serve  as  a  means  of  communication  between  the  states 
of  the  Rhine  upon  all  subjects  relating  to  navigation,"  it  was 
stipulated  that  a  central  commission  should  be  appointed,  con- 
sisting of  delegates  named  by  the  various  bordering  states,  which 
commission  should  regularly  assemble  at  Mayence  on  the  ist  of 
November  in  each  year.  Regulations  for  the  navigation  of  the 
Moselle  and  the  Meuse  were  to  be  drawn  up  by  those  members 
of  the  central  commission  whose  governments  should  have  pos- 
sessions on  the  banks  of  those  rivers. 

(Extract  from  Moore:  Digest  of  International  Law,  vol.  I,  p.  628.) 


§60.  INTERNATIONAL  UNIONS 


UNIVERSAL  POSTAL  UNION 

IF,  in  the  postal  relations  of  the  independent  states  which 
compose  the  family  of  nations,  the  ordinary  principle  of  inde- 
pendent action  held  sway,  great  would  be  the  confusion  and  in- 
convenience to  every  individual  in  the  whole  world  as  well  as  to 
the  governments  responsible  for  the  maintenance  of  these  com- 
munications. Different  rates  of  postage  would  prevail  to  meet 
the  exigencies  and  interests  of  the  different  states.  Some  states 
would  have  a  uniform  rate  for  the  whole  country,  while  others 
would  be  divided  in  much  the  same  way  as  the  United  States  is 
now  apportioned  into  zones  for  the  parcels  post.  Those  states 
over  whose  territory  other  states  were  obliged  to  ship  their  mail 
might  selfishly  take  advantage  of  the  situation  to  exact  exorbitant 
charges,  although  such  action  might  well  bring  in  its  turn  retalia- 


452  INTERNATIONAL  UNIONS 

tory  regulations  against  it  on  the  part  of  other  states.  This  would 
again  make  the  confusion  worse  confounded,  if  it  did  not  actually 
lead  to  a  suspension  of  postal  relations  from  time  to  time.  These 
are  only  a  few  of  the  inconveniences  which  would  result  from  such 
a  situation.  In  point  of  fact  inconveniences  such  as  these  did 
actually  exist  before  the  formation  of  the  Union  Postale  Univer- 
selle  (Universal  Postal  Union).  The  name  is  well  deserved,  for  the 
Union  which  wasfirst  established  by  the  Treaty  of  October  9, 1874, 
now  includes  about  threescore  states  and  colonies,  whose  com- 
bined territory  forms  "a  single  postal  territory  for  the  reciprocal 
exchange  of  correspondence  between  their  post-offices."  (Article 
I,  Universal  Postal  Convention,  May  26,  1906.) 
The  mechanism  of  this  Union  consists  of  three  essential  parts: 

(1)  The  convention  establishing  the  Union; 

(2)  The  bureau  established  at  Berne; 

(3)  Periodic  congresses  for  the  modification  or  revision  of  the 
fundamental  act  of  the  convention  upon  which  the  Union 
was  based. 

The  convention,  like  any  treaty,  depends  for  its  authority  upon 
the  consent  of  the  signatory  states,  so  that  the  regulations  which 
it  adopts  are  of  necessity  such  as  find  universal  favor  and  are  ap- 
plicable to  all  signatory  states  whatever  their  degree  of  civiliza- 
tion and  commercial  development. 

Whatever  inconveniences  result  from  the  application  of  the 
convention  as  adopted  can  be  modified  by  unanimous  agreement 
at  the  succeeding  congress  to  which  the  signatories  send  delegates 
with  the  requisite  full  powers.  The  full  appreciation  of  the  needs 
of  the  situation  make  the  delegates  at  these  conferences  ready  to 
reconcile  their  differences  in  a  large  spirit  of  compromise  so  as  to  ' 
secure  as  far  as  possible  a  uniform  rule  of  practical  application. 
But  here,  as  at  The  Hague,  the  curse  of  the  liberum  veto,  or  right  of 
any  state  to  block  by  its  refusal  what  the  others  may  wish  to 
adopt,  limits  the  efficacy  of  the  regulations  contained  in  the  con- 
vention. Any  group  of  states  is  free,  however,  to  enter  upon  a 
restricted  union  of  broad  application;  and  many  of  the  most  im- 
portant postal  regulations  between  the  states  rest  still  upon  bi- 
lateral treaties  —  for  example,  the  two-cent  postage  between  the 


UNIVERSAL  POSTAL  UNION  453 

United  States  and  Great  Britain.  The  postal  convention,  as 
modified  by  successive  congresses,  has  been  able  to  effect  such 
important  regulations  as  a  uniform  charge  of  twenty-five  centimes 
for  twenty  grams,  while  the  color  of  the  stamp  for  this  charge  must 
be  blue  in  all  countries.  Each  separate  country  interprets  the 
official  French  designations  into  the  nearest  practical  equivalent 
in  its  own  units,  so  that  in  the  United  States  this  makes  the  charge 
for  foreign  postage  five  cents.  The  charges  for  transit  through 
other  countries  have  been  standardized  and  the  exorbitant  de- 
mands of  certain  countries  curtailed. 

The  most  interesting  feature  of  the  Postal  Union  is  the  Inter- 
national Bureau  established  at  Berne.  To  it  is  delegated  the 
important  task  of  preparing  the  work  of  the  succeeding  congress, 
at  which  the  director  and  vice-director  are  present  to  advise  the 
congress,  without  of  course  enjoying  any  vote  in  its  decisions. 
The  Bureau  publishes  a  journal  of  information  in  three  languages, 
French,  English,  and  German,  in  three  parallel  columns,  although 
the  official  language  of  the  Union  is  French  and  all  the  discussions 
at  the  congress  are  conducted  in  French. 

In  the  interval  between  the  meetings  of  the  postal  congress  the 
International  Bureau  is  often  called  upon  to  give  its  advice  in 
regard  to  the  interpretation  of  the  provisions  of  the  convention. 
It  may  likewise  be  asked  to  act  as  an  arbitrator  to  settle  any  dis- 
agreement between  two  members  of  the  Union  in  reference  to  the 
application  of  the  convention.  The  Bureau  may  also  be  asked  to 
settle  the  accounts  between  those  administrations  which  care  to 
make  use  of  its  services.  The  Bureau  also  serves  as  an  intermedi- 
ary to  secure  any  desired  modification  of  the  convention  during 
the  interval  between  the  congresses.  Provided  that  three  adminis- 
trations make  the  appeal,  the  Bureau  submits  the  proposal  to  the 
other  administrations.  Article  26  of  the  convention  permits  such 
modifications  without  the  convocation  of  the  congress  and  regu- 
lates what  the  vote  shall  be,  —  unanimity,  two-thirds,  or  a  simple 
majority.1 

1  It  is  hard  to  understand  why,  when  a  majority  is  allowed  to  legislate  in  this 
way  for  the  minority,  the  same  simple  method  cannot  be  adopted  at  the  meetings 
of  the  congress.  But  governments,  nevertheless,  jealously  adhere  to  the  principle  of 

unanimity. 


454  INTERNATIONAL  UNIONS 

With  a  view  to  the  apportionment  of  the  expenses  of  mainten- 
ance, the  separate  .administrations  composing  the  Union  are 
divided  into  seven  ^classes,  on  the  basis  of  the  volume  of  their 
international  postal  relations.  This  convenient  and  equitable 
recognition  of  the  economic  inequality  of  the  states  has  been 
adopted  as  a  basis  for  the  assessment  of  the  expense  of  main- 
taining the  International  Bureau  at  The  Hague  in  accordance 
with  Article  50  of  the  Convention  for  the  Peaceful  Settlement  of 
International  Differences  signed  October  18,  1907. 

Although  war  interrupts  postal  relations  between  states  en- 
gaged in  conflict,  the  suspension  is  only  temporary,  and  with  the 
return  of  peace  the  postal  relations  of  the  erstwhile  belligerents  are 
renewed  under  the  empire  of  the  convention.  This  is  an  advantage 
international  conventions  possess,  since  ordinary  bilateral  treaties 
are  definitely  terminated  by  the  outbreak  of  hostilities. 

Many  other  unions  for  the  regulation  and  administration  of 
interests  common  to  a  large  group  of  states  have  been  established. 
While  the  independent  states  are  laboriously  working  out  their 
political  problems  and  discussing  the  organization  of  a  world- 
state,  each  one  of  these  international  unions,  in  its  special  but 
important  sphere,  is  acting  as  an  administrative  agent  for  the 
world. 


LIST  OF  CASES 

Alsace-Lorraine,  Nationality  of  French  Residents  in 172 

Alsop  Claim 326 

American  Flag,  Respect  for,  in  Greece 163 

American  Pork  Exports,  Inspection  of 292 

Americans,  Protection  of,  in  Turkey 44 

Arakelyan  Case 375 

Atocha  and  Gardiner  Cases  (cited) 78 

Balmaceda,  Overthrow  of 243 

Barbuit's  Case 19. 

Binzegger  Case 401 

Black  Sea,  Neutralization  of 134 

Blockade  of  Zanzibar 430 

Bombardment  of  Greytown 119 

Boyle,  Francis,  Case  of 359 

Brazilian  Coffee  Case 159 

Cadenhead  Case 262 

Californias,  Pious  Fund  of  the 64 

Canal  Zone,  Vested  Rights  in 127 

Canal  Zone,  Squatters 174 

Canevaro  Claim 316 

Caracas  Waterworks,  Case  of 325 

Caroline  and  McLeod  Cases 121 

Caroline  Islands  (Mediation  concerning) 49 

Casablanca  Arbitration 377 

Cattle  on  the  Mexican  Border 401 

Charalambis  Case 275 

Charlton  Extradition  Case 408 

Chinese  Indemnity,  Return  of 117 

Chinese  Laborers,  Transit  Privileges  to 295 

Connell's  Case 270 

Costa  Rica  Packet  Case 37* 

Costello  and  Warren  Cases •  32° 

Creole  Case •  248 

Cuban  Debt,  the ...  170 

Cutting's  Case 386 


456  LIST  OF  CASES 

De  Haber  v.  The  Queen  of  Portugal 6  «.,  46 

Delagoa  Bay  Railway  Arbitration 334 

Dhows  of  Muscat 350 

Dillon's  Case 31 

Diplomatic  Representatives,  Withdrawal  of,  from  Venezuela 108 

Dogger  Bank  Incident 98 

Dubuc  Case 311 

Duke  of  Ripperda's  Case 16 

Emperor  of  Austria  v.  Day  and  Kossuth 425 

European  Rivers,  Navigation  of 450 

Euryale  Case 168 

Exchange  Case 230 

Falkland  Islands 208 

Fisheries  Arbitration,  North  Atlantic 177 

Florence,  Incident  of  the  French  Consulate  at 34 

Foichat,  John  B.,  Case  of 322 

Forte  Case 38 

Franck,  Jacob,  Case  of 402 

Fur  Seal  Arbitration 218 

Gallatin's  Coachman,  Case  of 7 

Gamble's  Case 43 

Gardiner  Case  (cited) 78 

Gordon,  Lord  George,  Case  of  (cited} 429 

Greytown,  Bombardment  of 119 

Guatemalan  Customs  Laws 291 

Hague,  The,  the  First  Peace  Conference  at 52 

Hilton  v.  Guyot 436 

Honey,  Mrs.,  Case  of 273 

Impressment  of  Seamen 368 

Inspection  of  American  Pork  Exports 292 

Intervention,  Collective,  of  the  Powers  in  China 112 

Italian  Earthquakes 44-6 

Jews  in  Persia 445 

Jortin,  Lee,  Case  of 26 

Jus  Sanguinis  and  Jus  Soli  in  Chile 315 


LIST  OF  CASES  457 

Koszta,  Martin,  Case  of 51,  298 

La  Abra  Case 75 

Lamirande  Case  (cited) 420 

Lawrence  Case 430 

Lawrence  Extradition  Case  (cited} 416  «. 

Lazare  Claim 82,  96 

Leased  Territory  in  China 203 

Leases,  Perpetual,  in  Japan 127 

Letters  Rogatory 422 

Lumb,  Alfred,  Case  of 280 

McLeod  Case 121 

Marriage  of  American  Women  with  Greeks 374 

Masonic  Case 361 

Mattueof ,  Ambassador  of  Peter  the  Great,  Case  of 3 

Merchant  Shipping  Act,  the 439 

Mexican  Border,  Cattle  on 401 

Missionaries  in  Turkey,  American  Naval  Officers  sent  to  Aid  of,  124 

Mississippi,  Navigation  of 296 

Muscat,  Dhows  of 350 

Myers  and  Tunstall,  Case  of 411 

Nalbandian,  Extradition  of 403 

Navigation  of  European  Rivers 450 

Neutralization  of  the  Black  Sea 134 

New  Orleans  Lynching 264 

Newton  Case 246 

Nikitchenkoff  Case 228 

North  Atlantic  Fisheries  Arbitration 177 

Northeastern  Boundary  of  the  United  States 81 

Nunciature,  Expulsion  of  Secretary  of,  at  Paris 17 

Offenses  Committed  by  Frenchmen  Abroad 373 

Orinoco  Steamship  Company  Case 89 

Overthrow  of  Balmaceda 243 

Paquet's  Case 

Paquete  Habana  Case 

Peace  Conference,  First,  at  The  Hague 5* 

Pelew  Islands. .  49 


458  LIST  OF  CASES 

Pelletier  Claim 82 

Peltier,  Case  of  (cited) 429 

Perpetual  Leases  in  Japan 127 

Peter  the  Great's  Ambassador,  Case  of 3 

Pious  Fund  of  the  Californias,  the 64 

Piracy,  Trial  of  Privateers  for 424 

Pork,  Inspection  of  American  Exports  of 292 

Priest's  Case 18 

Pritchard  Affair 22 

Rauscher  Case : 413 

Regina  v.  Lesley 390 

Ripperda  Case 16 

Ritchie  v.  McMullen  (cited) 438  n. 

Rogers's  Case 30 

Roussel  Case 276 

Russia  v.  Turkey 58 

Sackville  West-Incident 10 

Sally  Case 246 

Samoa,  Restoration  of  Order  hi 45 

San  lago  Case  (cited} 398 

Santa  Cruz  Case ' 394 

Sapphire  Case 168 

Savarkar  Case 416 

Schnaebele  Incident 225 

Schooner  Exchange  Case 230 

Scotia  Case 432 

Soule's  Case 9 

Spanish  Warships  at  New  Orleans 242 

Suchet  Case 107 

Tcherniak  Affair 392 

Tillett,  Ben,  Case  of 284 

Torrey  Case .259 

Triquet  v,  Bath xxxi,  6  n. 

Tyler,  Ebenezer,  Arrest  of,  on  Canadian  territory 154 

Underbill  v.  Hernandez 156 

Universal  Postal  Union 451 

United  States  v.  Rauscher 413 


LIST  OF  CASES  459 

Venezuela,  Claims  against 69 

Venezuelan  Citizens  in  France,  Protection  of 51 

Virginius  Case 368 

Warren  and  Costello  Cases 320 

Weil  and  La  Abra  Cases 75 

Weile's  Claim 22 

Wildenhus  Case 253 

Williams,  John  H.,  Claim  of 55 

Wohlgemuth  Affair 137 

Zappa  Incident 155 


LIST  OF  ARBITRATIONS 

Alsop  Claim  (1911) 326 

Brig  Lawrence  (1848) 430 

Cadenhead  Case  (1914) 262 

Canevaro  Claim  (1912) 316 

Casablanca  Arbitration  (1909) 377 

Costa  Rica  Packet  (1888)  371 

Creole  (1853) 248 

Delagoa  Bay  Railway  Arbitration  (1900) 334 

Dhows  of  Muscat  (1905) 350 

Dogger  Bank  Incident  (1904)  (Commission  of  Inquiry) 98 

Fur  Seal  Arbitration  (1893) 218 

Lazare  Claim  (1884-87) 96 

Masonic  (1879) 3^i 

North  Atlantic  Fisheries  Arbitration  (1910) 177 

Northeastern  Boundary  of  the  United  States  (1831)  (Award  not 

accepted) 81 

Orinoco  Steamship  Company  Case  (1910) 89 

Paquet's  Case  (1903) 290 

Pelletier  Claim  (1884-87)  (set  aside) 82 

Perpetual  Leases  in  Japan  (1905) 127 

Pious  Fund  of  the  California^  (1902) 64 

Russia  v.  Turkey  (1912) 58 

Savarkar  Case  (1911) 416 

Torrey  Case  (1903) 259 

Venezuela,  Claims  against  (1866-90)  (set  aside) 69 

Weil  and  La  Abra  Cases  (1868-1902) 75 

Williams,  John  H.,  Claim  of  (1885) 55 


INDEX 


A  List  of  Cases  is  given  on  page  455;  and  a  List  of  Arbitrations  on  page  460. 


Acts  of  state:  responsibility  for  (Caro- 
line), 122  Jf . ;  officials  not  responsible 
for,  before  courts  of  another  state,  156. 

Adams,  John:  maintains  theory  of  "divi- 
sion of  empire,"  177;  on  "liberty" 
and  "right,"  191. 

Adams,  J.  Q.,  Secretary  of  Slate  of  U.S. : 
explanation  of,  in  case  of  Captain 
Gamble,  43;  letter  of,  on  recognition 
of  new  states,  164;  argument  of,  as  to 
survival  of  Treaty  of  1783,  180. 

Administration  of  international  law:  pro- 
cedure in  regard  to  transit  of  Chinese, 
296. 

Administrative  procedure:  U.S.  method 
of,  in  cases  of  deportation,  275. 

Agency:  legal  consequences  of  Turkey's 
banishment  of  Koszta  under  compul- 
sion from  Austria,  209;  irregularity  of, 
according  to  national  law,  in  deliver- 
ing Savarkar,  not  material  under  in- 
ternational law,  422;  regulation  of 
vessels  in  interest  of  humanity,  442; 
international  unions  act  as  adminis- 
trative, for  world,  454. 

Agents:  immunities  of,  of  international 
intercourse,  3-46,  225-28;  jurisdic- 
tion over  acts  done  by  nationals 
abroad  as,  of  foreign  state,  300-91. 

Agreement,  diplomatic:  record  of,  in  ex- 
change of  notes,  48;  treaty  used  for 
record  of,  48;  of  governments  as  bar 
to  international  claims,  55;  between 
Great  Britain  and  Russia  re  Commis- 
sion of  Inquiry,  101,  102. 

Agreements,  international  (see  also  Trea- 
ties): 126  /. 

Ahmed  Reoiid  Bey:  arbitrator  in  case 
of  Russia  v.  Turkey,  58. 

Alaska:  purchase  of,  218. 

Algeciras:  Act  of,  grants  Germany  most- 
favored-nation  treatment  in  Morocco, 
382. 

Aliens:  Congress  enacts  legislation  giving 
jurisdiction  over,  to  federal  courts 
(Caroline),  123;  rights  of,  250-75;  ex- 
ercise of  jurisdiction  over,  for  acts 


done  within  another  state,  386-89: 
protection  of,  afforded  by  international 
law  against  unjust  punishment,  387. 

Allegiance:  succession  of,  172;  conflict  of 
laws  in  regard  to,  of  municipal  char- 
acter, 301;  banishment  releases  from, 
303;  perpetual,  and  expatriation,  320- 
25;  protest  of  Sultan  of  Muscat  •gi"t'^t 
withdrawal  of  subjects  from,  352;  en- 
forcement of  law  of,  within  territorial 
jurisdiction,  368;  attempt  of  Great 
Britain  to  enforce  municipal  law  of, 
on  high  seas,  368. 

Alsace-Lorraine:  nationality  of  French 
residents  in  (1871),  172. 

Alsop  claim:  326-34. 

Amalfi,  Tables  of:  434. 

Ambassador  (see  also  under  Diplomatic 
representatives) :  British,  on  own  initia- 
tive asks  explanation  of  Dogger  Bank 
incident,  99. 

American  flag:  respect  for,  in  Greece, 
163- 

Amiable  compositeur :  functions  of,  de- 
nned, 329. 

Analogy:  U.S.  contends  international 
law  to  be  "international  standard  of 
justice  and  advanced  by,"  221. 

Anarchist:  Swiss  Government  does  not 
allow,  to  settle  in  Switzerland,  148. 

Anderson,  Chandler  P.:  agent  for  U.S. 
in  North  Atlantic  Fisheries  case,  187. 

Animus  furandi:  presence  of,  in  piracy, 
370. 

Animus  revrrtenat :  intention  to  return. 

Anne,  Queen  of  Great  Britain:  assures 
Russian  Ambassador  of  sense  of  out- 
rage on  him  and  intention  to  prose- 
cute all  implicated,  3;  writes  letter  to 
Peter  the  Great  expressing  "just 
horror  against  this  violent  insult,"  5  *.; 
apology  tendered  to  Peter  the  Great 
in  Queen's  name.  6;  writes  appropriate 
letter  to  Mattueof,  7. 

Annulment  of  awards:  commission  on 
Venezuelan  claims  sets  aside  awards 
of  former  commission,  74. 


462 


INDEX 


Apologies:  sometimes  tendered  by  gov- 
ernments, 106;  and  protests,  106-07. 

Apology:  English  Ambassador  makes, 
in  open  audience,  6;  French  Govern- 
ment expresses  regrets  for  arrest  of 
Pritchard,  25-26;  salute  of  French 
flag  by  U.S.,  33;  U.S.  makes  redress 
to  France  for  violation  of  consul's 
rights,  33;  China  expresses,  for  Boxer 
outrages,  113  jf.;  who  should  make, 
for  unjustifiable  detention  (Torrey 
case),  260. 

A  posteriori:  that  which  is  subsequent  to 
something  else. 

Arakelyan,  case  of:  375-77. 

Arbitral  procedure:  governed  by  the 
compromis,  54;  arbitration  and  the 

1    presentation  of  claims,  54-58;  in  Casa- 

'    blanca  case,  378. 

Arbitration:  difficulty  to  get  governments 
to  employ  (Moore),  vi;  nature  and 
advantages  of,  xxix;  Permanent  Court 
of,  at  The  Hague,  established  1899, 
54;  U.S.  demands,  of  Venezuela,  108; 
refusal  of  Venezuela  to  submit  claims 
to,  109,  no;  the  Halifax  award  for  the 
fishing  rights,  185;  Hague  Tribunal 
(Fisheries)  authorized  to  make  rules 
of  procedure  for  fisheries,  187;  tribunal 
suggests  an  act  of  grace  (Cadenhead), 
263-64;  differences  as  to  execution  of 
contract  to  be  referred  to,  335;  ap- 
plication of  Portuguese  law  to,  if  not 
counter  to  international  law,  346; 
remarks  of  Jenkins  in  reference  to, 
424. 

Arbitrations,  List  of:  460. 

Arbitrator:  departure  from  powers  dele- 
gated to,  81-82. 

Archives,  consular:  violated  by  clause 
duces  tecum  in  subpoena,  32;  French 
Government  considers  subpoena  duces 
tecum  involved  violation  of,  32;  French, 
at  Florence,  inviolable  under  Treaty 
of  1862,  35. 

Argentine  Republic:  claim  of,  to  Falkland 
Islands,  208-17. 

Arica:  arrangements  as  to  customs  at, 

327- 

Armaments:  military  and  naval,  limita- 
tion of,  proposed  by  Russian  Govern- 
ment, 53. 

Armed     forces:     extra  territoriality     of, 

235  Jf- 

Armed  forces  and  warships:  230-42. 

Ashburton,  Lord:  regrets  violation  of 
territory  in  Caroline  affair,  122;  nego- 
tiations of,  with  Webster,  249,  368. 

Asser,  T.  M.    C.:  arbitrator   in  Pious 


Fund  case  at  Permanent  Court  at 
The  Hague  (1912),  66. 

Asylum  (see  also  Refuge):  legation  not 
inviolable,  8;  refused  by  Dutch  Em- 
bassy to  Duke  of  Ripperda,  16;  Duke 
of  Ripperda  seeks,  at  British  Embassy, 
1 6;  not  allowed  by  Spanish  Govern- 
ment to  obtain,  16;  not  to  be  forcibly 
terminated  without  notice,  17;  Switzer- 
land will  not  give  up  right  of,  147; 
vessels  in  distress  have  right  of,  in 
foreign  ports,  236;  U.S.  does  not  rec- 
ognize, in  case  of  Spanish  warships  at 
New  Orleans,  242-46;  U.S.  seizes 
Confederates  in  Morocco,  411;  anarch- 
ists not  considered  political  refugees, 
412-13;  France  claims  that  Savarkar 
had  right  to,  418. 

Atocha  and  Gardiner  cases:  78. 

Aube,  Admiral:  favors  ultimatum  to 
Germany,  226. 

Au  service:  meaning  of,  in  French  treaty 
with  Muscat,  357,  358-59. 

Austria-Hungary:  seizure  of  Koszta  at 
Smyrna  by  authorities  of,  51;  party  to 
Treaty  of  Paris  (1856),  134;  warns 
Switzerland  against  danger  to  Swiss 
neutrality,  139;  demand  of,  for  ex- 
tradition of  Koszta  from  Turkey,  298; 
seizure  of  Koszta  by  authorities  of, 
299-311;  grants  U.S.  transit  of  extra- 
dited person,  407-08;  British  court 
restrains  manufacture  of  paper  money 
of,  425-29- 

Australia:  seizure  of  derelict  on  high 
seas,  by  vessel  from,  371-72. 

Authorities:  help  of,  in  ascertaining  the 
rule  of  conduct,  xxviii;  Greece  and 
Roumania  consult  international  jurists 
in  regard  to  Zappa  affair,  155. 

Authority:  law  of  nations  to  be  collected 
from,  of  writers,  xxxii. 

Award:  Mosquitia,  cited  in  Russia  ». 
Turkey,  62;  is  principle  of  res  judicata 
applicable  to,  66;  protest  against,  of 
King  of  Netherlands  on  ground  of 
excess  of  powers,  82;  essential  error 
ground  for  annulment  of,  82-89;  pro- 
test by  Hayti  against  execution  of, 
83;  revisability  of,  of  international 
commission,  64-69,  89-96;  protest  by 
U.S.  against  Barge,  92;  of  Halifax,  arbi- 
tration for  the  fishing  rights,  185;  final- 
ity of,  provided  for,  341 ;  unsatisfactory 
nature  of,  in  Casablanca  case,  385. 

Award,  annulment  of:  commission  on 
Venezuelan  claims  sets  aside  awards 
of  former  commission,  74;  on  ground 
of  new  evidence,  96-98. 


Award,  conclusions  of:  have  force  of  res 
judicata,  67. 

Awards:  final  nature  of,  opinion  of  Mr. 
Fish  on,  76;  suspension  of  payments 
on,  77;  duty  of  government  to  refuse 
to  enforce  inequitable,  78,  88;  unpaid 
balance  of,  returned  by  U.S.  to  Mexico, 
80,  81;  revision  of,  chief  reasons  for, 
93,  94;  international,  annulled  by  in- 
ternational tribunal,  95. 

Aylesworth,  A.  B.:  agent  for  Great 
Britain  in  North  Atlantic  Fisheries 
case,  187. 

Bail:  Russian  Ambassador  compelled  to 
furnish,  3. 

Balance  of  power:  Great  Britain  seeks 
concession  to  maintain,  206. 

Balfour,  British  Premier:  announces 
commission  of  inquiry  on  Dogger  Bank 
incident,  100. 

Balmaceda,  President  of  Chile:  war  be- 
tween Congressionalists  and,  243; 
takes  refuge  at  Argentine  Legation, 
244. 

Bancroft:  naturalization  treaties,  321; 
signs  convention  with  North  German 
Confederation  (1868),  321. 

Banishment:  Austria  accepts,  of  Koszta 
as  substitute  for  extradition,  299; 
legal  consequences  of,  from  Turkey 
of  Koszta,  same  as  if  done  by  Austria, 
209;  releases  from  bond  of  allegiance, 
303;  of  certain  Chileans,  390. 

Barbcyrac:  xxxii;  opinion  of,  on  consular 
privileges,  21. 

Barbuit's  case:  cited  in  Triquet  r.  Bath, 
xxxi,  19-22. 

Bardo,  Treaty  of  the:  8. 

Barge,  Dr. :  umpire  on  U.S.-Venezuela 
Mixed  Commission  of  1903,  92;  dis- 
allows larger  part  of  Orinoco  Steam- 
ship Co.  claim,  92;  award  of,  protested 
by  U.S.,  92;  award  of,  annulled  in  part 
by  Permanent  Court  of  Arbitration 
(1910),  95. 

Basis  of  protection :  298—311. 

Batavia:  liability  of  U.S.  citizen  to  mili- 
tary service  in,  270. 

Bates,  Joshua:  umpire,  Commission  of 
1853,  248;  opinion  of,  in  Creole  case, 
249-53;  opinion  in  Lawrence  case, 

430-31- 

Bat  hurst,  Lord:  argument  of,  as  to  sur- 
vival of  Treaty  of  1783,  180. 

Bayard,  Secretary  of  State  of  U3.:  asks 
Lord  Salisbury  to  recall  Lord  Sack- 
villc,  10;  authorized  by  President 
Cleveland  to  send  Lord  Sackvillc  his 


INDEX  463 

passports,  10;  replies  to  Lord  Salis- 
bury, 13;  quotes  rule  laid  down  by 
Calvo,  14;  signs  new  convention  for 
settlement  of  Venezuelan  claims  (1885), 
73;  signs  another  convention  (1888), 
73;  report  of,  on  Weil  and  La  Abra 
claims,  78;  reports  against  enforcement 
of  Petletier  and  Lazare  awards,  83, 
96;  letter  of,  protesting  against  undue 
discrimination  against  American  citi- 
zens, 162;  on  Torrey  claim,  260,  261; 
demands  instant  release  of  Cutting 
386. 

Bays:  difficulty  of  making  definition  of, 
183;  intention  of  negotiators  of  Treaty 
of  1818  regarding,  199  ff. 

Beaumont,  Admiral :  British  representa- 
tive on  Commission  of  Inquiry,  Dogger 
Bank  incident,  102. 

Beemaert:  arbitrator  in  Savarkar  case, 
418. 

Behring  Sea:  ukase  of  Russia  asserting 
jurisdiction  over  (1821),  218;  Cana- 
dian sailing  vessels  seized  in,  219; 
considered  mare  clausum  by  U.S. 
tribunal,  219;  question  of  jurisdiction 
over,  submitted  to  arbitration,  220; 
exclusive  jurisdiction  in,  never  as- 
serted by  Russia,  224;  included  in 
"Pacific  Ocean,"  224. 

Belgium:  consular  convention  between 
U.S.  and,  253;  expulsion  of  British 
subject  from,  284-90;  subject  of,  ex- 
cluded from  Venezuela,  200-91;  juris- 
diction over  claims  of,  against  Vene- 
zuela, 325. 

Belligerency:  recognition  of,  not  neces- 
sary to  judicially  establish  fact  of  ex- 
istence of  revolution  or  insurrection, 

157- 

Berne:  International  Bureau  of  Postal 
Union  established  at,  453. 

Binzeggcr,  case  of:  401-02. 

Bismarck:  suggests  conference  at  Lon- 
don (1871)  on  neutralization  of  Black 
Sea,  136;  demands  release  of  Wohlge- 
muth,  138;  views  of,  on  treaty  between 
Germany  and  Switzerland,  144;  note 
of,  on  Schnaebcl£  incident,  226. 

Black  Sea:  neutralization  of,  134. 

Blackstonc:  on  law  of  nations  and  com- 
mon law  of  England,  252. 

DiiMi  arbitrator  in  Dcbgoa  Bay  Rail- 
way case,  341,  348. 

Blaine,  IfJl.  Secretary  of  Slate:  opinion 
of,  on  fraudulent  claims  mftmf* 
Mexico,  77  «.;  petition  against,  to 
compel  distribution  in  Weil  award, 
79;  negotiates  treaty  on  naherics 


464 


INDEX 


(1892),  186;  communication  of,  to 
Governor  of  Louisiana,  266;  notes  of, 
on  New  Orleans  lynching,  267,  268; 
gives  assurance  of  redress  by  U.S.  in 
case  of  violation  of  treaty,  269;  offer 
of  indemnity  by,  accepted  by  Italy, 
270;  diplomatic  intervention  of,  in 
Delagoa  Bay  Railway  case,  340. 

Blanc,  Baron:  arbitrator  in  case  of  the 
Masonic,  365;  award  of,  365-67. 

Blanco,  Guzman,  President  of  Venezuela : 
orders  release  of  American  citizens, 
261. 

Blockade:  of  Orinoco,  right  of  Venezue- 
lan Government  to  institute,  92;  of 
Zanzibar,  430. 

Bolivia:  financial  transactions  of,  with 
the  Alsops,  326-34;  customs  of,  col- 
lected [at  Peruvian  port,  327;  war  be- 
tween Chile  and,  327;  Pact  of  Indefi- 
nite Truce  between  Chile  and,  327; 
obligations  of,  assumed  by  Chile,  328. 

Bond,  Sir  Robert:  negotiates  treaties 
on  fisheries  (1892,  1902),  186. 

Borchard,  Edwin  M.:  international  claims 
discussed  by,  in  The  Diplomatic  Pro- 
tection of  Citizens  Abroad,  55  ». 

Borland,  U.S.  Minister  to  Central 
America:  attacked  by  mob  at  Grey- 
town,  1 20. 

Bosphorus:  passage  of  warships  through, 
prohibited  by  Treaty  of  Paris  (1856), 

134- 

Boulanger,  General:  in  favor  of  ultima- 
tum to  Germany,  225. 

Boycott:  China  required  to  prohibit 
anti -foreign  societies,  115. 

Boyd,  Federico:  member  of  U.S.- 
Panama Joint  Commission  (1913),  174. 

Boyle,  Francis,  case  of:  359-61. 

Bradley,  Justice :  opinion  of,  in  case  of  the 
Sapphire,  169. 

Brazil:  British  naval  officers  arrested 
in,  38;  reprisals  by  Great  Britain 
against,  to  obtain  redress  in  Forte 
case,  40;  valorization  of  coffee  in,  159; 
public  property  of,  in  U.S.  not  subject 
to  seizure,  161. 

Brazilian  Coffee  case:  150-62. 

Brussels  Conference:  General  Act  of,  on 
slave  trade,  351. 

Bryce,  Lord,  British  Ambassador  at  Wash- 
ington: signs  special  agreement  sub- 
mitting North  Atlantic  Fisheries  dis- 
pute to  arbitration  (1909),  177. 

Buchanan:  approves  recognition  of 
French  Government  by  Mr.  Rush, 
166;  states  policy  of  U.S.  with  respect 
to  de  facto  governments,  167. 


Buenos  Ayres:  policy  of  U.S.  in  recogni- 
tion of  government  of,  164. 

Bulgaria:  grants  extradition  to  U.S. 
without  treaty  as  act  of  grace,  403- 
08. 

Bulwer,  Sir  Henry,  British  Minister  at 
Madrid:  dismissal  of  (1848),  12. 

Buruaga,  Asta,  Chilean  Minister  at 
Washington:  complains  of  revocation 
of  exequatur  of  Consul  Rogers,  30. 

Business:  national  courts  jurisdiction  in 
case  of,  of  foreign  government,  160. 

Butler,  General:  claims  right  to  search 
Spanish  warship  at  New  Orleans,  242. 

Bynkershoek:  xxxii;  on  jurisdiction  over 
foreign  sovereigns,  239,  240. 

Cadenhead  case:  262-64. 

Calderon:  arbitrator  in  the  Canevaro 
claim,  317. 

Calif ornias,  Pious  Fund  of  the:  64-69. 

Calvo:  opinion  of,  on  recall  of  diplomatic 
officials,  14;  rules  for  dismissal  of 
diplomatic  representative  stated  by, 
14;  statement  of,  on  claim  to  Falk- 
land Islands,  217. 

Calvo  clause:  inserted  in  Venezuelan 
contracts,  91-92. 

Cambon,  French  Ambassador  at  London: 
concludes  agreement  with  Great  Brit- 
ain re  dhows  of  Muscat,  350;  on  right 
to  fly  the  French  flag,  356. 

Campbell,  Lord,  Chief-Justice  of  England : 
refuses  to  cite  Queen  of  Portugal  into 
a  British  court,  46. 

Canada:  forces  from,  destroy  Caroline 
on  U.S.  territory,  121;  arrest  of  Ameri- 
can deserter  in,  disavowed  by  U.S., 
154;  Dominion  of,  formed  (1867), 
184;  responsibility  of  Great  Britain 
for  legislation  of,  184;  has  bonding 
privilege  in  U.S.,  184;  regulation  of 
fisheries  by,  184-86;  institution  of 
permanent  mixed  fishery  commission 
for,  195;  sealing  vessels  of,  seized  in 
Behring  Sea,  219;  damages  paid  by 
U.S.  for  seizures  of  sealing  vessels  of, 
225;  execution  of  judgment  of,  in  U.S., 
438  n. 

Canal  Zone:  rights  of  squatters  on,  174; 
property  rights  in,  not  divested  by 
transfer  of  sovereignty,  176. 

Canevaro  claim:  316-20. 

Canso,  Strait  of:  right  of  innocent  pas- 
sage through,  183-87. 

Cape  Bretcn:  American  fishing  vessel 
seized  off  coast  of,  183. 

Capitulations:  see  Koszta  case,  301  ff.; 
appli cation  of,  to  Muscat,  354-57. 


Caracas  Waterworks  case:  325-26. 
Caroline  and  McLeod  cases:  121-23. 
Caroline  Islands:  dispute  about,  settled 
by  mediation  of  Pope  Leo  XIII,  40- 

50- 

Casablanca  arbitration:  377-85. 

Case-book  method  of  teaching:  v. 

Cases,  List  of,  455. 

Cassation,  Court  of:  the  Supreme  Court 
of  France.  It  corresponds  most 
nearly  to  our  Supreme  Court,  but  has 
less  extensive  and  somewhat  different 
functions. 

Castile,  Council  of:  opinion  of,  on 
asylum  in  embassies,  16. 

Cattle  on  the  Mexican  Border:  401. 

Certiorari:  a  writ  from  a  superior  to  an 
inferior  court  directing  a  certified 
record  of  its  proceedings  in  a  desig- 
nated case  to  be  sent  up  for  review. 
(Standard.)  The  purpose  is  to  secure 
a  fairer  or  more  speedy  trial. 

Cerruti  case:  cited  in  Alsop  claim,  329. 

Cessions  of  territory:  status  of  loans  re- 
lating to,  171;  effect  of,  as  to  nation- 
ality of  residents,  173;  effects  in  case 
of  recognition  of  independence  of 
seceding  state,  177  ff. 

Ceylon:  pearl  fishery  in,  protected  be- 
yond ordinary  limit  of  jurisdiction, 
222. 

Change  of  government:  effect  of,  upon 
property  of  chief  of  state,  169. 

Change  of  sovereignty:  see  Transfer  of 
sovereignty. 

Charalambis  case:  275-76. 

Charge  d'affaires  ad  interim :  distinguished 
from  charge  des  affaires,  15  «. 

Chargt  des  affaires:  distinguished  from 
chargi  d'affaires  ad  interim,  15  n. 

Charlton  Extradition  case:  408-11. 

Chesapeake  Bay:  jurisdiction  of  U.S. 
extends  over,  199. 

Chile:  consul  of,  at  New  York,  revoca- 
tion of  exequatur  of,  30;  U.S.  Minister 
to,  grants  asylum  to  Congressionalists 
at  Santiago,  243;  policing  of  foreign 
legations  by  government  of,  244;  re- 
fusal of  government  of,  to  grant  safe- 
conduct  to  refugees,  245,  246;  adop- 
tion by,  of  principle  of  jus  sanguints, 
315;  the  Alsop  claim  against,  326- 
34;  war  between  Bolivia  and  Peru 
and,  327;  Pact  of  Indefinite  Truce 
between  Bolivia  and,  327;  obligations 
of  Bolivia  assumed  by,  in  Treaty  of 
1904,  328;  responsibility  of,  for  un- 
dertaking with  Bolivia,  333;  law*  of 
Great  Britain  not  applicable  to  act* 


INDEX  465 

of  British  vessel  in  waters  of,  300-01; 
laws  of,  not  applicable  to  British  ship 
on  high  seas,  391-92. 

China:  collective  intervention  of  the 
powers  in,  112;  return  of  Chinese  in- 
demnity to,  by  U.S.,  117;  Treaty  of 
Shimonoseki  between  Japan  and 
(1895),  203;  cession  of  Liao-tung  Penin- 
sula to  Japan  by,  203;  retrocession  of 
Liao-tung  to,  203;  leases  by,  of  Kiao- 
chau  to  Germany,  203-05;  of  Port 
Arthur  and  Talien  to  Russia,  205-06; 
of  Kwang-chau  to  France,  206;  of 
Wei-hai-wei  and  Kowloon  to  England, 
206-07;  consent  of,  to  transfer  of 
lease  of  Port  Arthur  to  Japan,  207; 
demands  of  Japan  upon  (1915),  207; 
transit  of  Chinese  laborers  across 
U.S.,  295;  Germany  cites  action  re- 
garding consular  jurisdiction  in,  383. 

Chinese  exclusion:  privileges  of  transit 
issued,  296. 

Chinese  indemnity:  return  of,  by  U.S., 
112-19. 

Citizenship:  exercise  of,  considered  de- 
cisive factor  in  determining  nationality, 
318. 

Civil  war:  foreign  nations  do  not  assume 
to  judge  merits  of,  157. 

Claims:  presentation  of,  arbitration,  ar- 
bitral procedure,  54-58;  fraudulent, 
reservation  of  Mexico  with  respect  to, 
76;  for  loss  of  property  at  Greytown, 
presented  to  U.S.,  120;  jurisdiction  of 
domestic  regulations  over  claim  ac- 
quired by  alien,  319;  assignment  of, 
recognized  by  Bolivian  Government, 
326- 

Classification:  what  constitutes  good,  ri. 

Cleveland,  President:  dismisses  Lord 
Sackville  West,  British  Minuter  at 
Washington,  n;  opinion  of,  in  Cut- 
ting's case,  388-89. 

Codification:  general  treaties  sometimes 
are,  xxvi  n. 

Coercive  measures  short  of  war:  107-21. 

Coffee,  Brazilian,  case:  159. 

Collective  intervention:  of  the  powers  in 
China,  112-17;  police  action  by,  430. 

Collective  note:  Russia,  Germany,  and 
France  address,  to  Japan,  urging  re- 
trocession of  Port  Arthur.  203. 

Colombia:  discrimination  by,  in  taxa- 
tion, 162;  Cerruti  case  in,  cited  in 
Alsop  claim,  329. 

Comity:  exemption  of  fishing  vessels 
from  capture  originally  based  on, 
xxxiii;  refusal  to  allow  foreign  sov- 
ereign to  sue  in  U.S.  courts  would  be 


466 


INDEX 


want  of,  169;  extent  of  jurisdiction 
over  crew  left  to  consuls  as  measures 
of,  255;  deportation  of  criminal  to 
another  state  violation  of,  283;  may 
yield  extradition  which  law  does  not  re- 
quire, 302,  401-03;  U.S.  asks  Germany 
to  allow  consuls  to  take  testimony  as 
act  of,  423;  judicial  application  of  rule 
of  reciprocity  out  of  regard  for  na- 
tional, 437. 

Commerce,  questions  of:  proper  concern 
of  public  ministers,  20. 

Commercial  agent:  not  entitled  to  diplo- 
matic privileges,  19;  functions  of,  21; 
attack  on  U.S.  Minister  at  residence 
of  American,  at  Greytown,  120. 

Commission:  as  agent  of  commerce,  19; 
at  Russian  Embassy  to  examine 
claims  against  Turkey,  58. 

Commission,  Halifax:  award  of  (1877), 
185- 

Commission,  International,  of  Inquiry: 
in  Dogger  Bank  incident,  98-106. 

Commission,  international:  of  experts  es- 
tablished by  Fisheries  Arbitration,  195; 
for  the  regulation  of  rivers,  450-51. 

Commission,  mixed:  under  Treaty  of 
1868  between  U.S.  and  Mexico,  65; 
under  Convention  of  1866  between  U.S. 
and  Venezuela,  69. 

Commission,  mixed  claims:  February 
17,  1903,  between  U.S.  and  Vene- 
zuela, 89. 

Commission,  new:  on  Venezuelan  claims, 
to  rehear,  not  to  review  former  award, 

74- 

Communications,  postal:  see  Universal 
Postal  Union,  45 1  ff. 

Compensation:  Great  Britain  pays  dam- 
ages for  Fortune  Bay  incident,  185; 
law  applicable  to  fixing  of,  347. 

Compensatory  interest:  distinguished 
from  moratory,  61. 

Compromis:  see  also  special  agreement, 
187;  recognized  as  governing  rule  in 
arbitration,  55. 

Compromise:  treaties  based  upon,  xxvi; 
through  discussion,  essence  of  diplo- 
macy, 47;  settlement  by,  not  always 
considered  a  precedent,  47;  basis  of 
settlement  of  political  differences,  48; 
equitable,  basis  of  all  new  rules,  154; 
settlement  of  Brazilian  Coffee  case, 
162;  Austria  accepts  banishment  of 
Koszta  from  Turkey  in  place  of  extra- 
dition, 299;  large  spirit  of,  prevails 
in  Postal  Union  congresses,  452. 

Conception  Bay:  jurisdiction  of  Great 
Britain  extends  over,  199. 


Conduct:  international  law  rule  of,  bind- 
ing on  nations,  151. 

Conference  of  teachers  of  international 
law:  resolutions  adopted  by,  viii  n- 
ix  ;/. 

Conferences:  International  Hague,  52-54. 

Conflict  of  laws:  see  Private  international 
law;  Foreign  judgments;  Nationality. 

Congress:  resolution  of,  upon  appoint- 
ment of  new  commission  on  Venezuelan 
claims  (1883),  71;  President  to  ask, 
to  remit  Chinese  indemnity,  118-19; 
by  joint  resolution  tenders  congratula- 
tions to  France  upon  establishment  of 
Republic  (1848),  168;  passes  act  de- 
claring right  of  expatriation,  322;  of 
Vienna,  navigation  of  Rhine,  450;  In- 
ternational, one  of  the  essential  parts 
of  Postal  Union,  452. 

Congo  Free  State:  cooperation  of,  in 
blockade  of  Zanzibar,  430. 

ConnelTs  case:  270-73. 

Conquest:  effect  of,  to  transfer  debts, 
170;  effect  of,  to  transfer  nationality, 
172;  effect  of,  on  Arica  mining  con- 
cessions, 331. 

Consent:  all  restrictions  of  national 
jurisdiction  must  be  traced  to,  232; 
may  be  tested  by  common  opinion, 
growing  out  of  usage,  232. 

Constitution:  of  Chile:  interpretation 
of  provision  relating  to  citizenship, 
315;  of  U.S.:  overrides  conflicting 
treaties,  32;  of  U.S.:  distribution  of 
authority  between  federal  and  state 
governments,  264;  of  U.S. :  in  Winslow's 
case  U.S.  refused  to  give  assurances 
regarding  action  of  judiciary,  416  n. 

Constraint:  means  of,  necessity  to  resort 
to,  107. 

Consul:  rights  and  immunities  of,  18- 
38;  nature  of,  denned,  21;  not  entitled 
to  diplomatic  pri vileges,  21;  wrongful 
arrest  of,  in  Chile,  22;  removal  of 
English,  from  Tahiti,  22;  suit  against 
English,  in  court  at  Dieppe,  26;  office 
as,  ceased  when  Pritchard  hauled 
down  his  consular  flag,  23  n.;  responsi- 
bility for  official  acts,  26  ff.;  enjoys 
immunity  necessary  for  discharge  of 
official  duties,  28;  status  and  privileges 
of,  28;  exequatur  of  Chilean,  at  N.Y., 
revoked,  30;  French,  exercises  good 
offices  in  Koszta's  case,  301;  French, 
at  San  Francisco,  brought  before  U.S. 
tribunal,  31;  commander  of  Erie  be- 
lieved consul  would  receive  citation 
he  refused  to  accept,  43;  American, 
retained  in  Venezuela  upon  with- 


drawal  of  diplomatic  representative, 
112;  naval  officers  instructed  to  con- 
fer with,  regarding  protection  of 
Americans,  124;  Greek  Government 
claimed  to  be  put  in  possession  of 
Zappa  estate  by  consulate,  155;  U.S., 
at  La  Guaira  obtains  release  of  Torrey, 
260;  Italian,  asks  governor  to  send 
troops  to  protect  prisoners  (New  Or- 
leans lynching),  265;  American,  places 
mate  in  command  of  the  Creole,  250; 
Belgian,  claims  jurisdiction  over  crew 
under  treaty  (Wildenhus),  253; 
American,  obtains  release  of  Forchat 
imprisoned  for  "  insoumission,"  323; 
jurisdiction  of,  over  vessels  to  investi- 
gate crimes  committed  on  the  high 
seas,  392;  makes  complaint  in  extradi- 
tion case,  408;  always  referred  to, 
before  taking  action  against  a  foreign 
vessel,  440. 

Consular  corps:  at  Florence  protests 
against  violation  of  French  Consulate, 
36. 

Consular  jurisdiction:  in  Japan,  see  Per- 
petual Leases,  127  ff.;  or  extraterri- 
torial, 377-85;  France  in  Casablanca 
case  argues,  must  yield  to  military  au- 
thority, 380;  Seward  considers,  extends 
to  political  refugees,  411-12. 

Consul-general:  French,  good  offices  of, 
in  Koszta  case,  51. 

Consul  missus:  professional  consul,  dis- 
tinguished from  an  elected  or  merchant 
consul  who  is  also  engaged  in  trade. 

Consuls:  conference  between,  and  naval 
officers  for  protection  of  citizens,  44- 
45;  American  Minister  issues  to,  direc- 
tions regarding  flying  of  American 
flag,  163;  limits  of  jurisdiction  of,  over 
vesseb  and  crews  (Sally),  246  ff.; 
vigorous  protest  of  U.S.,  at  release  of 
slaves  from  U.S.  vessels,  248;  Chinese, 
permitted  to  issue  transit  certificates, 
206;  relief  of  destitute  seamen,  402; 
designated  by  U.S.  courts  to  take 
testimony  abroad,  422  ff.;  asked  to 
furnish  information  about  Messina 
earthquakes,  446-47. 

Consuls  at  Florence:  draw  up  official 
report  on  violation  of  French  Consu- 
late, 36. 

Contra  bonos  mores:  U.S.  claims  exter- 
mination of  seals  on  high  seas  is,  220. 

Contract  laborer:  Charalambis  ordered 
deported  as,  275. 

Control  over  vessels  flying  the  national 
flag:  3.00-93. 

Convention:   concerning   the   Uwi   and 


INDEX  467 

customs  of  war  on  land  (1899),  54; 
for  the  peaceful  settlement  of  inter- 
national differences,  54;  of  1866  be- 
tween U.S.  and  Venezuela,  mixed 
commission  under,  69;  of  July  4,  1868, 
between  U.S.  and  Mexico  for  adjust- 
ment of  claims,  75. 

Cooperation  of  U.S.  in  restoring  order 
in  Samoa:  45. 

Corporations:  protection  and  national- 
ity of,  325-50. 

Corruption  of  the  tribunal:  69. 

Costa  Rica  Packet  case:  371-72. 

Costello  and  Warren  cases  :*  20-2  a. 

Council  of  State  (Consfil  d'&at]:  a  body 
entrusted  with  certain  advisory  and 
judicial  functions  relative  to  the  ap- 
plication of  the  law.  Its  judicial 
actions  extend  to  some  cases  affect- 
ing the  interest  of  foreigners. 

Council  of  State:  French  (1859)  declares 
local  authorities  competent  to  exer- 
cise jurisdiction  over  crew  in  case  of 
homicide  on  vessel,  258-59. 

Courcel,  Baron  de:  arbitrator  in  Fur 
Seal  case,  221. 

Court  (see  also  National  courts) :  Perma- 
nent, of  Arbitration  at  The  Hague,  es- 
tablished 1809,  54!  officials  not  re- 
sponsible for  acts  of  government 
before  courts  of  another  state,  156. 

Court  of  Claims:  of  U.S.,  Venezuela  not 
to  be  forced  into,  73;  jurisdiction  of, 
to  investigate  fraudulent  claims,  79; 
decision  of,  on  fraudulent  awards  of 
mixed  commission,  80. 

Courts:  see  also  Prize  courts. 

Covarrubias,  Chilean  Minister  of  Foreign 
Affairs:  expresses  surprise  at  revoca- 
tion of  exequatur  of  Consul  Rogers,  30. 

Creole  case:  248-53. 

Crete:  Germany  cites  action  regarding 
consular  jurisdiction  in,  383. 

Crew:  decision  in  case  of  the  Sally  de- 
nning limits  of  jurisdiction  of  consuls 
over  vessels  and,  246  fi.;  when  local 
authorities  may  exercise  jurisdiction 
over,  of  foreign  vessels,  247;  Belgian 
Consul  claims  jurisdiction  over,  under 
treaty  (Wildenhus),  253;  French 
Council  of  State  (1859),  declares  local 
authorities  competent  to  exercise  juris- 
diction over,  in  case  of  homicide  on 
vessel,  258-50;  French  official  de- 
livering Savarkar  thought  him  mem- 
ber of,  421. 

Crime:  U.S.  in  case  of  the  CnoU  con- 
tends entry  into  British  jurisdiction 
result  of,  249. 


468 


INDEX 


CriminaJs:  U.S.  protests  against  deporta- 
tion of,  to  America,  281. 

Crispi,  President  of  Council,  Italy:  per- 
sonally examines  case  of  French  Con- 
sulate at  Florence,  37;  telegram  from, 
closing  incident  at  Florence,  38. 

Cross-bill:  the  bill  filed  by  a  defendant 
in  a  suit  in  equity  against  the  com- 
plainant in  order  to  obtain  some  relief 
against  him. 

Cuba:  U.S.  declines  to  assume  debt  of, 
179. 

Curtis,  G.  T.:  opinion  of,  on  case  of  the 
Virginius,  370. 

Gushing,  Commander :  protest  of,  against 
summary  executions  in  case  of  the 
Virginias,  369. 

Custom:  nature  and  value  of,  as  to  rule 
of  conduct,  xxvii. 

Customs:  Venezuela  tries  to  force  French- 
men to  pay,  already  paid  revolution- 
ists, 108;  collection  of  Bolivian,  at 
.  Peruvian  port,  327;  liens  on,  in  liqui- 
dation of  national  debt,  327. 

Cutting's  case:  386-89. 

Damages:  measure  of,  58-64,  366-67; 
U.S.  informs  Torrey  will  not  ask 
"vindictive  damages"  for  his  arrest, 
260;  award  of,  for  illegal  detention, 
261. 

Damnum  emergens:  element  of,  in  fixing 
compensation,  347. 

Dana:  opinion  of,  in  case  of  the  Vir- 
ginius,  371. 

Dardanelles:  passage  of  warships  through, 

134- 

Davis,  Admiral:  American  representa- 
tive on  Commission  of  Inquiry, 
Dogger  Bank  incident,  102. 

Debt,  national:  liquidation  of,  by  liens 
on  customs  receipts,  327. 

Decision:  of  French  tribunal  against 
U.S.  warship  respected  by  U.S.  Gov- 
ernment, 44. 

Deckloads:  British  regulations  in  regard 
to,  440. 

Declaration:  of  intention  to  become 
citizen  of  U.S.,  209;  to  respect  in- 
dependence of  Sultan  of  Muscat,  350, 

35i- 

De  facto:  actually  existent,  irrespective 
of  the  legal  right  to  fill  the  office.  It 
is  contrasted  with  dejure,  which  means 
in  accordance  with  law.  A  govern- 
ment actually  independent  and  exer- 
cising all  the  powers  of  an  independent 
community  is  a  government  de  facto 
until  it  has  been  recognized  as  a  legal 


government  on  the  part  of  other 
states. 

De  facto  governments:  U.S.  always  rec- 
ognizes, 167. 

De  Haber  v.  Queen  of  Portugal:  6  n.,  46. 

De  jure :  see  De  facto. 

Delagoa  Bay  Railway  Arbitration:  334- 
49. 

Delaware  Bay:  jurisdiction  of  U.S.  ex- 
tends over,  199. 

Delay:  Great  Britain  informs  Russia 
situation  does  not  admit  of,  99; 
Roussel  deported  without  waiting 
outcome  of  ambassador's  request  for 
reconsideration,  278;  no  excuse  for 
summary  executions  in  the  Virginius 
case,  37. 

Demand  for  interest:  debtor  state  en- 
titled to  privilege  of,  63;  right  to, 
forfeited  by  Russia,  63. 

Dennis,  William  C.:  agent  for  U.S.  in 
Orinoco  Steamship  Company  arbitra- 
tion, 95  n. 

Deportation:  U.S.  procedure  in  cases  of, 
275;  order  of,  for  contract  laborer, 
275;  U.S.  orders,  in  case  of  Roussel 
for  weak  constitution,  276;  U.S.  pro- 
tests against,  of  criminals  to  America, 
281. 

Derby,  Lord,  British  Foreign  Secretary; 
413-14,  443. 

Derelict:  seizure  of,  on  high  seas,  371. 

Desart,  Lord:  commissioner  in  Alsop 
claim,  329;  arbitrator  in  Savarkar 
case,  418. 

Deserter:  arrested  in  Canada  by  U.S. 
officer,  released,  154;  Germany  claims, 
falls  under  consular  jurisdiction,  383. 

Deserting  seaman:  French  official  acts 
on  belief  that  Savarkar  is,  421. 

Desjardins:  decision  of,  in  case  of  Ben 
Tillett,  284-90. 

Detention:  award  of  damages  for  illegal, 
261. 

Dhows  of  Muscat,  case  of:  350-59. 

Differences:  international,  methods  of 
procedure  for  the  settlement  of,  47- 
126;  between  states,  Greece  objects 
to  Roumania's  action  in  submitting, 
to  national  court,  155;  fisheries,  found 
irreconcilable  by  diplomacy,  187; 
Seward  relates  method  of  settling 
Warren  and  Costello  cases,  320-21. 

Dignity:  incident  of  Greytown  supposed 
to  affect,  of  U.S.,  120. 

Diligence:  required  to  keep  claim  alive, 

55- 

Dillon,  French  Consul  at  San  Francisco : 
protests  against  issuance  of  legal 


INDEX  469 


process  against  him,  31;  hauls  down 
consular  Sag,  32. 

Dillon's  case:  31-34;  President  Pierce 
refers  to  settlement  of,  10. 

Diplomacy:  practice  of,  method  of 
study,  xiii;  purpose  of,  xxx;  Swiss  Gov- 
ernment considers  friendly  discussion 
would  have  settled  differences,  143; 
President  Buchanan  transmits  letter 
of  credence  to  Rush  upon  change  of 
government  in  France,  166;  example 
of  verbal  informal  friendly  negotia- 
tion (Connell's  case),  270^. 

Diplomatic  corps:  protests  against  pro- 
posed act  of  Parliament,  5;  dean  of, 
conveys  message  to  U.S.  Minister  at 
Santiago,  243. 

Diplomatic  interposition:  of  U.S.  in- 
voked by  Alsops,  328;  to  protect 
interests  of  nationals  in  foreign  cor- 
porations, 334-48- 

Diplomatic  relations:  broken  off  between 
France  and  Holy  See  (1004),  17;  re- 
newal of,  between  Brazil  and  Great 
Britain,  42;  withdrawal  of  U.S.  Lega- 
tion from  Venezuela,  108-13. 

Diplomatic  representatives:  rights  and 
immunities  of,  3-18;  withdrawal  of, 
3;  dismissal  of,  case  of  Lord  Sackville 
West,  10;  cannot  be  dismissed  with- 
out reasons,  12;  retention  of,  deter- 
mined by  receiving  government,  12; 
interference  of,  in  politics  ground  for 
dismissal,  13;  rules  for  dismissal,  14; 
withdrawal  of,  between  France  and 
Holy  See  (1904),  17;  privileges  of,  19, 
20;  may  not  renounce  privileges,  20, 
21  «.;  withdrawal  of,  ceremony  of 
renewal  of  relations  between  England 
and  Brazil,  42;  preservation  of  immu- 
nities until  departure,  in:  withdrawal 
of,  108-12;  withdrawal  of,  Greece  re- 
calls representative  from  Bukharest, 
155;  withdrawal  of,  Italian  Minister 
withdraws  from  Washington  "on 
leave"  (New  Orleans  lynching),  267; 
inviolability  of,  not  superior  to  right 
of  self -defense,  381. 

Diplomatic  residence:  not  inviolable,  8. 

Diplomatic  rights  and  immunities:  repa- 
ration for  murder  of  Minister  at 
Peking,  113  ff.j  Legation  at  Peking 
attacked,  113  ff.\  American  Minister 
issues  to  consuls  directions  regarding 
flying  of  American  flag,  163;  ice  also 
Legations,  228-29. 

Diplomats:  redrew  for  insult  to  (Grey- 
town).  110-20;  basis  for  the  immuni- 
ties of,  from  jurisdiction,  234. 


Disavowal:  French  Government  makes, 
of  acts  done  in  Tahiti,  25;  by  U.S. 
of  dismissal  of  Captain  Haddock,  154; 
Great  Britain  disavows  action  of 
warships  in  warning  off  Americans 
from  deep-sea  fishing,  179;  Austria 
asks  U.S.  to  make,  of  action  of  com- 
mander of  St.  Louis,  301. 

Discovery:  title  to  Caroline  Islands 
based  by  Spain  on,  49. 

Discrimination:  in  regard  to  taxes  con- 
trary to  general  principles,  162;  U.S. 
justified  in  protest  against,  as  to  taxes, 
162;  Blaine  assures  Italy  nationality  of 
New  Orleans  victims  not  a  factor,  265. 

Discussion :  and  compromise,  as  a  method 
of  settlement,'  47-48;  Swiss  Govern- 
ment considers  friendly,  would  have 
settled  differences,  143. 

Display  of  force,  threats:  107. 

Distress:  U.S.  in  case  of  the  Creole  con- 
tends entry  into  British  jurisdiction 
result  of  crime,  249. 

Dobree  r.  Napier:  cited,  00-91. 

Dogger  Bank  incident:  98-106. 

Domestics:  of  diplomats  not  free  from 
arrest,  7. 

Domicile:  effect  of  transfer  of  territory 
upon  nationality  of  those  having  a, 
i73-74>  confers  national  character, 
305;  defined,  306;  loss  of,  307;  not 
equivalent  in  effect  to  nationality, 
356. 

Dommagfs  interUs:  obligation  of  states 
to  pay,  maintained  by  Russia,  60: 
principle  of,  applicable  to  fixing  of 
compensation,  347;  comprise  d<im*um 
emrrgens  and  lucrum  ffssans,  347. 

Dago,  Dr. :  arbitrator  in  North  Atlantic 
Fisheries  case,  187;  dissenting  opinion 
of,  201. 

Dronyn  de  l*Huys,  French  Minister  for 
Foreign  Affairs:  makes  statement  on 
detention  of  Minister  Soule,  9. 

Dubassoff,  Admiral:  takes  place  of  Ad- 
miral Kazankoff  on  Commission  of 
Inquiry,  Dogger  Bank  incident,  102; 
does  not  concur  in  opinion  of  Com- 
mission, 105. 

Dubuc,  case  of:  311-14. 

Ducts  Ucum:  a  judicial  command  to  a 
person  to  appear  in  court  with  all 
necessary  books  and  documents,  31. 

Dudley,  Earl,  British  Stcrdtry  for 
Foreign  Affairs :  state*  premue*  of  an 
ambassador  not  inviolable  (1817),  8. 

Edward  VII,  King  of  Grtat  Britain: 
Tsar  ujUMMI  regret  to,  (or  Dogger 


470 


INDEX 


Bank  incident,  100;  agrees  to  act  as 
amiable  compositeur  in  AJsop  case,  329. 

Egan,  U£.  Minister  to  Chile:  affords 
asylum  to  Congressionalists,  243; 
refuses  search  of  legation,  243;  pro- 
tests against  policing  of  American 
Legation,  245;  views  of,  on  question 
of  asylum,  246. 

Embargo:  a  detention  of  shipping  in 
port  by  state  authority  —  either  of 
national  shipping  for  political  reasons 
or  of  foreign  shipping  for  purposes  of 
reprisal. 

Emigration:  "unlawful"  effect  of,  from 
Austria,  303-04. 

Emperor:  title  of,  first  given  to  Tsar, 
6». 

Emperor  of  Austria  v.  Day  and  Kossuth: 
425-29. 

Emotions:  dangers  due  to,  xxx  n. 

Enlistment:  foreign,  does  not  work  ex- 
patriation under  German  law,  382; 
of  German  troops  matter  of  private 
law,  383. 

Equality:  of  states,  not  apparent,  153, 
162. 

Error:  essential,  82;  of  official  deliver- 
ing Savarkar  not  attributed  to  British, 
421. 

Essential  error:  on  part  of  arbitrator 
ground  for  annulment  of  award,  82- 
89;  ground  for  revision  of  award,  89- 
96;  France  urged,  made  null  rendition 
of  Savarkar,  421. 

"Estacas":  328. 

European  rivers:  navigation  of,  450-51. 

Euryale:  case  of  the  Sapphire  and  the, 
168-70. 

Evarts,  U.S.  Secretary  of  Stale:  recom- 
mends reopening  awards  in  Weil  and 
La  Abra  claims,  77;  opinion  of,  on 
Torrey  claim,  260. 

Evidence:  new,  92. 

Excess  of  power:  81;  as  ground  of  pro- 
test against  award  of  King  of  Nether- 
lands, 82;  as  reason  for  revision  of 
award,  89-96. 

Exchange,  case  of:  230. 

Exchange  of  notes:  forms  record  of  diplo- 
matic agreement,  48. 

Exclusion:  of  British  vessels  from  U.S. 
ports  (1818),  107, 

Exequatur:  authorization  given  consuls 
by  the  receiving  state  to  exercise  their 
functions. 

Exequatur:  right  to  refuse,  18;  U.S. 
does  not  give  reasons  for  withdrawing, 
30;  grant  of,  to  ad  interim  consul,  30; 
revocation  of,  of  Chilean  Consul  at 


N.Y.  for  violation  of  neutrality  laws, 
30;  of  U.S.  Consul  at  Valparaiso,  31; 
minister  takes  measures  to  secure 
recognition  of  vice-consul  placed  tem- 
porarily in  charge  at  Messina,  448. 

Exercise  of  jurisdiction:  over  repatriated 
nationals  for  acts  done  abroad,  373- 
74;  over  nationals  resident  abroad, 
374-77;  over  aliens  for  acts  done 
within  another  state,  386-89. 

Exercise  of  national  jurisdiction:  sudden, 
without  notice  and  contrary  to  usage, 
constitutes  violation  of  faith,  232. 

Ex  parte :  action  taken  by  one  side  only, 
or  on  application  of  one  of  the  parties 
to  a  suit. 

Expatriation:  effect  of  banishment  and 
"unlawful"  emigration,  304;  pro- 
vision of  French  law  in  regard  to, 
3J3  ff-'t  and  perpetual  allegiance,  320- 
25;  does  not  exempt  for  punishment 
for  acts  committed  before,  323;  right 
of:  limited  application  of,  to  dispute 
over  impressment,  368;  under  German 
Law  of  1807,  foreign  enlistment  did 
not  effect,  382. 

Experts:  fisheries  arbitrators  allowed  to 
refer  certain  questions  to,  187. 

Exports:  American  pork,  292-95. 

Ex  post  facto:  action  taken  after  and  rela- 
tive to  something  prior.  [Arising  or 
enacted  after  the  fact;  retrospective; 
retroactive  (Standard).] 

Expulsion:  284-91;  of  secretary  of  nun- 
ciature at  Paris  (1906),  17;  of  German 
official  by  Switzerland,  138;  U.S. 
objects  to  use  of  penalty  of,  to  impose 
unjustifiable  military  service,  272; 
right  of,  discussed,  285  ff.;  comple- 
ment of  power  of  exclusion,  418; 
nature  and  right  to  exercise,  418. 

Extradition:  Russian  Government  de- 
mands, in  Nikitchenkoff's  case,  229 
n.',  Austria  presses  Turkey  for,  of 
political  refugees,  298  ff.;  Austria  ac- 
cepts banishment  of  Koszta  from 
Turkey  in  lieu  of,  299;  limitations  im- 
posed upon  right  to  demand,  301-02; 
of  nationals  cannot  be  demanded  as 
right,  301;  France  and  Italy  refuse,  of 
nationals,  373,  403-22;  Bulgaria  ac- 
cords, to  U.S.  without  reciprocity, 

4°S- 

Extraordinary  mission:  China  sends,  to 
Berlin  to  apologize,  1 13  ff. 

Extraterritorial:  or  consular  jurisdic- 
tion, 377-85;  offenses  (see  Cutting's 
case),  387  ff.;  jurisdiction,  Roumania 
refuses  extradition  because  of  U.S. 


INDEX 


471 


penal  legislation,  407-08;  jurisdiction 
over  aliens  (see  Charlton  case),  408  #.; 
jurisdiction,  British  regulations  of 
foreign  vessels  constitutes,  441. 
Extraterritoriality  (see  case  of  the  Per- 
petual Leases  in  Japan,  127  ff.;  Dip- 
lomatic rights  and  immunities,  163): 
legation  is  subject  to  local  jurisdic- 
tion (Nikitchenkoff's  case),  228-29;  of 
ambassadors,  legal  fiction  of,  cannot 
be  extended  to  individuals  not  re- 
lated to,  230;  (see  case  of  the  Exchange, 
23°  ff->)  territorial  jurisdiction  cannot 
extend  to  sovereigns,  232-33;  of  armed 
forces,  235  ff.;  vessels  entering  ports 
in  distress  have  implied  license  and 
immunities,  236,  237;  neutral  vessels 
not  exempt  from  local  jurisdiction, 
247;  Senate  declares  vessel  entering 
harbor  in  distress  loses  none  of  her 
rights  on  high  seas,  248;  Austrian 
laws  inoperative  in  Turkey  unless 
with  Sultan's  consent,  301;  status 
of  protege's  in  Turkey,  308;  (see  also 
case  of  Dhows  of  Muscat,  350  ff.;) 
privileges  of,  granted  in  Muscat,  351; 
native  owners  of  dhows  not  entitled 
to,  in  Muscat,  359. 

Fact:  question  of,  submitted  to  arbitral 
tribunal,  416. 

Facts:  Casablanca  arbitration  author- 
ized to  decide,  378;  foreign  municipal 
laws  must  be  proved  as,  435;  inter- 
national law  not  required  to  be  proved 
as,  435- 

Faith:  exercise  of  national  jurisdiction 
suddenly,  without  notice,  and  con- 
trary to  usage,  constitutes  violation 
of,  232. 

Falkland  Islands  case:  208-17. 

Faya,  Baron,  Italian  Minister  at  Wash- 
ington: 255-67;  departure  of ,  on  leave, 
267;  returns  to  Washington,  270. 

Favored-nation  (see  also  Most-favored- 
nation),  application  of,  clause  to  pre- 
vent Colombia  discriminating  in  taxa- 
tion of  Americans,  162;  in  relation  to 
recognizing  Buenos  Ayres  Govern- 
ment, 165. 

Fera  naturer:  Great  Britain  contends 
that  seals  are,  222-23. 

Ferry,  French  Minister  of  Foreign  Affairs : 
on  expatriation,  323-25. 

Fiction,  legal:  of  extraterritoriality  of 
diplomatic  agents  cannot  be  extended 
to  individuals  not  related  to  them, 
230. 

Filtz:  umpire,  325-26. 


Final  Act  of  Hague  Peace  Conference: 
.54- 

Finlay,  Sir  Robert:  counsel  in  North 
Atlantic  Fisheries  case,  187. 

Fish,  Hamilton,  US.  Secretary  of  State: 
276.  413,  4i6  «. 

Fisheries  (see  also  Pelagic  sealing): 
U.S.  refuses  to  recognize  rights  of 
Buenos  Ayres  regarding  Falkland,  208; 
rights  of,  cannot  be  withdrawn  with- 
out notice,  211;  pearl,  on  high  seas, 
222. 

Fisheries  Arbitration,  North  Atlantic: 
177-202. 

Fishing  vessels:  exemption  of,  from  cap- 
ture in  war,  xxxii-xxxvi;  exceptions  to 
the  rule,  xxxv. 

Fitzpatrick,  Sir  Charles:  arbitrator  in 
North  Atlantic  Fisheries  case,  187. 

Flag:  English  Consul  at  Tahiti  hauls 
down,  as  protest  against  French 
action,  23;  French  Consul  at  San 
Francisco  hauls  down,  32;  salute  of 
French,  by  U.S.  and  return  of  salute, 
33;  respect  for  American,  in  Greece, 
163;  Great  Britain  gives  notice  of  in- 
tention to  hoist,  over  Falklands,  212; 
authorization  of  Muscat  dhows  to  fly 
French,  350-59;  right  to  fly,  deter- 
mined by  sovereign,  357;  authoriza- 
tion to  fly  French,  not  to  be  trans- 
mitted or  transferred,  359;  crew  of 
vessel  find  protection  in,  361;  right 
to  fly,  usually  determined  by  registry, 
368-71;  Spain  agrees  to  salute  Ameri- 
can, 369;  salute  of,  not  required  of 
Spain,  369;  control  over  vessels  flying 
the  national,  390-93. 

Florence:  incident  of  the  French  Con- 
sulate at,  34-38. 

Flourens,  French  Minuter  for  Foreign 
Affairs:  settles  incident  of  French 
Consulate  at  Florence,  32;  votes  against 
ultimatum  to  Germany,  226. 

Foichat,  John  B.,  case  of:  322-25. 

Force:  display  of,  107;  use  of,  119;  Calvo 
accuses  Great  Britain  of  abuse  of,  in 
case  of  Falklands,  217. 

Force  majcure:  pleaded  as  exception  by 
Turkey,  61 ;  not  considered  by  tribunal 
in  Russia  «.  Turkey,  6j;  plea  of,  by 
Delagoa  Bay  Railway  Company,  jj8, 

343- 

Forces,  armed:  and  warships,  230-42. 
Foreign  judgments:  436-39. 
Foreign  laws:  must  be  proved  as  (acts, 

435- 

Foreign  Office:  announces  to  press 
action  has  been  taken,  99. 


472 


INDEX 


Foreign  vessels:  see  Vessels. 

Forgery:  English  law  punishing,  of  money 
of  foreign  states,  427. 

Forte:  case  of  the,  38-43. 

Formation:  of  treaties,  126-27;  of  new 
rules  of  international  law,  153. 

Forsyth,  V J>.  Secretary  of  State:  122. 

Fortune  Bay  incident:  185. 

Foster,  John  W.,  U3.  Minister  at  Ma- 
drid: 364,  365. 

Fournier,  Admiral:  French  representa- 
tive on  Commission  of  Inquiry,  Dogger 
Bank  incident,  102. 

France:  instructions  of  Great  Britain 
to  seize  fishing  vessels  of,  xxxiv;  prize 
courts  of,  restore  captured  fishing 
vessels,  xxxiv-xxxv;  government  of, 
detains  U.S.  Minister  to  Spain  at 
Calais,  9;  expels  secretary  of  nuncia- 
ture at  Paris  (1906),  17;  removes 
British  Consul  from  Tahiti,  24;  courts 
of,  dismiss  action  against  British  Con- 
sul at  Dieppe,  26;  consul  of,  at  San 
Francisco,  brought  into  U.S.  court, 
31;  government  of,  protests,  32;  viola- 
tion of  archives  of  French  Consulate 
at  Florence,  34;  American  naval  com- 
mander summoned  before  tribunal  of, 
43;  citizens  of  Venezuela  in,  protected 
by  U.S.,  51;  Koszta  placed  in  cus- 
tody of  consul-general  of,  at  Smyrna, 
51;  warship  of,  makes  display  against 
Venezuela,  107;  party  to  case  of  Per- 
petual Leases  in  Japan,  127;  party  to 
Treaty  of  Paris  (1856),  134;  signs 
Treaty  of  London  (1871),  136  n.; 
recognition  of  French  Republic  by 
U.S.  Minister  at  Paris  (1848),  166; 
Napoleon  III  brings  suit  in  courts  of 
United  States,  168;  nationality  of 
French  residents  in  Alsace-Lorraine, 
172;  French  fishing  rights  in  New- 
foundland, 178;  joint  regulation  of 
fishery  by  Great  Britain  and,  191; 
ten-mile  rule  applied  to  bays  in  treaties 
between  Great  Britain  and,  200;  col- 
lective note  of  Germany,  Russia,  and, 
203;  lease  of  Kwang-chau  to,  206; 
first  to  form  settlement  hi  Falk- 
land Islands  (1764),  214;  evacuates 
islands  (1766),  214;  strained  relations 
between  Germany  and,  over  Schnae- 
be!6  incident,  225;  armed  vessel  of, 
not  subject  to  jurisdiction  of  U.S., 
230-42;  jurisdiction  over  merchant 
ships  in  ports  of,  246-48,  256,  258;  re- 
fusal of  U.S.  to  admit  citizen  of,  on 
return  to  U.S.,  276-80;  prohibition 
of  importation  of  American  pork  into, 


292;  Koszta  placed  in  temporary  cus- 
tody of  French  Consul-General,  300; 
liability  of  U.S.  citizens  to  military 
service  in,  311-14,  322-25;  law  of,  on 
citizenship,  323  n.;  agreement  with 
Great  Britain  to  arbitrate  case  of 
Dhows  of  Muscat,  350;  engagement  of, 
to  respect  independence  of  Muscat, 
350,  351;  most-favored-nation  treaty 
with  Muscat,  351;  refuses  to  admit 
right  of  visit  and  search  of  French 
vessels  in  case  of  slave  trade,  351; 
grant  by,  of  ships'  papers  and  flags  to 
owners  of  dhows,  352;  contentions  of, 
in  support  of  "  francisation,"  353-55; 
conditions  of  French  prot6g6ship  in 
Muscat  stated  in  award,  358-59;  re- 
fusal of,  to  extradite  nationals  for 
crimes  committed  abroad,  373;  con- 
vention with  Great  Britain  on  Anglo- 
French  marriages,  375;  Casablanca 
arbitration  between  Germany  and, 
377-85;  deserters  from  Foreign  Legion 
protected  by  German  Consulate,  378; 
agreement  with  Germany  on  com- 
promis  of  arbitration,  378;  contention 
of,  that  authority  of  military  occupant 
is  paramount  to  consular  jurisdiction, 
379-82;  anarchist  delivered  up  by 
Great  Britain  to,  412-13;  no  obliga- 
tion on  Great  Britain  to  restore  pris- 
oner to,  because  of  error  of  French 
official,  416-22;  no  inalienable  right 
of  asylum  in,  418;  jurisdiction  taken 
by  Great  Britain  over  merchant  vessel 
of,  on  charge  of  piracy,  424-25;  assists 
hi  blockade  of  Zanzibar  for  suppres- 
sion of  slave  trade,  430;  marine  or- 
dinances of  Louis  XIV,  435;  rule  of 
reciprocity  applied  by  U.S.  to  judg- 
ment of  French  court,  436-39. 

"Francisation,"  process  of:  353,  354. 

Franck,  Jacob,  case  of:  402-03. 

Fraud:  hi  proceeding  of  commission, 
ground  for  annulling  awards,  69-74. 

Fraudulent  claim:  75-76. 

Frelinghuysen,  U£.  Secretary  of  State: 
72,  78,  82,  364,  402. 

French:  official  language  of  Postal  Union, 

453- 

Fromageot,  Henri,  President,  American- 
British  Claims  Arbitration  Tribunal: 
renders  decision  hi  Cadenhead  case, 
262-64. 

Frontier:  reciprocity  of  practice  regard- 
ing crossing  of,  401. 

Fry,  Sir  Edward:  arbitrator  hi  Pious 
Fund  case,  66;  arbitrator  in  Casa- 
blanca incident,  379. 


INDEX 


473 


Fuca,  Strait  of:  line  of  jurisdiction  in, 
beyond  three  miles,  109. 

Full  powers:  to  negotiate  treaties,  126. 

Fuller,  Chief  Justice:  opinion  of,  in 
Underbill  ».  Hernandez,  157;  arbi- 
trator in  case  of  Dhows  of  Muscat, 
353;  dissenting  opinion  of,  in  Hilton 
v.  Guyot,  438-39- 

Fundy,  Bay  of:  American  fishing  vessel 
seized  in,  183;  all  questions  as  to, 
omitted  in  Fisheries  Arbitration,  187; 
jurisdiction  over,  199. 

Fur  Seal  Arbitration:  218-35. 

Fusinato:  arbitrator  in  the  Canevaro 
claim,  317;  arbitrator  in  the  Casa- 
blanca incident,  379. 

Gallatin's  Coachman,  case  of:  7-8. 

Gamble,  Captain,  case  of:  43-44. 

Gardella,  case  of  Vittorio:  324  j». 

Geneva  Convention  (Red  Cross):  ex- 
tension of  provisions  of,  to  naval  war- 
fare, at  Peace  Conference  (1809),  53. 

George  V:  amiable  compositcur  in  Alsop 
case,  329;  award  of,  334. 

German  language  (see  Language):  6. 

Germany:  action  of,  in  restoring  order 
in  Samoa,  45;  claim  of,  to  sovereignty 
over  Caroline  Islands,  49;  minister  of, 
murdered  at  Peking,  113;  party  to 
case  of  Perpetual  Leases  in  Japan,  127; 
action  of,  to  terminate  treaty  with 
Switzerland  because  of  Wohlgemuth 
affair,  137;  warns  Switzerland  against 
danger  to  Swiss  neutrality,  139;  view 
of,  on  nationality  of  French  residents 
in  Alsace-Lorraine  (1871),  172;  col- 
lective note  of  Russia,  France,  and, 
203;  demands  of,  upon  China  for  mur- 
der of  missionaries,  203;  lease  of  Kiao- 
chau  to,  203-05;  China  to  consent  to 
all  arrangements  between  Japan  and, 
208;  strained  relations  of,  with  France 
over  Schnaebele  incident,  225;  in- 
come tax  on  American  citizen  re- 
funded, 273-74;  prohibition  of  im- 
portation of  American  pork  into, 
292-95;  Casablanca  arbitration  be- 
tween France  and,  377-85;  consulate 
of,  protects  deserters  from  French 
Foreign  Legion,  378;  provision  of 
military  penal  code  of,  with  respect  to 
occupied  territory,  380;  contention  of, 
that  consular  jurisdiction  is  not 
affected  by  military  occupation  in 
Morocco,  382-84;  enjoys  most-fa- 
vored-nation  rights  In  Morocco  under 
Convention  of  Madrid  and  Act  of 
Algcciras,  382;  admits  extraterritorial- 


ity in  Samoa,  383;  refusal  by,  of  re- 
sponsibility for  deserting  German  sea- 
men in  U.S.,  402-03;  objection  by,  to 
taking  of  testimony  in  Germany  by 
U.S.  commissioners,  422-23;  "requi- 
sitions" in,  analogous  to  letters 
rogatory,  423;  blockade  of  Zanzibar 
by,  for  prevention  of  slave  trade,  430. 

Ghent,  Treaty  of:  status  of  fisheries  not 
denned  by,  1  79. 

Gift:  Russian  Ambassador  departs  with- 
out accepting  the  customary,  3;  nature 
of  indemnity  as,  pleaded  by  Turkey 
as  exception,  61. 

Good  offices:  and  mediation,  40-52; 
extended  by  U.S.  for  protection  of 
Venezuelan  citizens  in  France,  51;  of 
French  Consul  -General  in  Koszta 
case,  51;  American  archives  and  in- 
terests in  Venezuela  confided  to  Brazil, 
n  i  ;  French  Consul  takes  charge  of 
Koszta,  301  ;  of  Emperor  of  Austria  in 
Casablanca  incident,  378;  U.S.  Min- 
ister interposes  in  favor  of  Jews  in 
Persia,  445. 

Gordon,  Lord  George:  convicted  for 
libel  on  Queen  of  France,  429. 

Gortchakoff,  Prince,  Russian  Minister  for 
Foreign  Affairs:  note  of,  announcing 
Russia  no  longer  bound  by  Treaty  of 
Paris,  134. 

Government:  effect  of  change  of,  upon 
property  of  chief  of  state,  169;  brings 
suit  in  sovereign  capacity,  425. 

Governments:  new,  166;  suits  by,  in 
foreign  courts,  169;  relation  of,  to 
claims  of  nationals,  341;  reciprocity  as 
a  basis  of  treatment  between,  394-401. 

Grace,  act  of:  tribunal  suggests  an 
(Cadenhead),  263-64. 

Grain  cargoes:  British  regulation  of 
foreign  vessels  with,  445. 

Gram,  Gregers:  arbitrator  in  case  of 
Perpetual  Leases  in  Japan,  130;  ar- 
bitrator in  Fur  Seal  case,  221;  arbi- 
trator in  Savarkar  case,  418. 

Grant:  Japan's  view  in  regard  to,  by 
treaty,  130-31;  power  to  regulate  a, 
by  treaty,  189. 

Granville,  Lord,  British  Foreign  Stcrt- 
tary:  denies  freedom  of  Russia  to 
abrogate  Treaty  of  Paris,  135. 

Gray.  George.  Judge:  arbitrator  in  North 
Atlantic  Fisheries  case,  187. 

Gray,  Justice,  US.  Supreme  Court: 
opinion  of,  in  PamuU  llabana,  xxxil- 
zxxvi;  judgment  of,  in  Hilton  t.  Guyot, 


- 
Great  Britain:  instructions  of,  to  teUe 


474 


INDEX 


French  and  Dutch  fishing  vessels, 
xxxiv;  apologizes  to  Russia  for  arrest 
of  ambassador,  9;  first  gives  title  of 
Emperor  to  Tsar,  6  n. ;  arrest  of  Galla- 
tin's  coachman  on  premises  of  Ameri- 
can Legation,  7;  Lord  Sackville  West, 
minister  of,  at  Washington,  dismissed, 
10;  minister  of,  at  Madrid,  dismissed 
by  Spain  (1848),  12;  Duke  of  Rip- 
perda  at  embassy  of,  at  Madrid,  16; 
denies  diplomatic  immunities  to  Prus- 
sian agent  of  commerce,  19;  consul  of, 
at  Tahiti,  hauls  down  flag  on  annexa- 
tion of  island  by  France,  23;  action 
against  vice-consul  of,  at  Dieppe,  in 
French  tribunal,  26;  naval  officers  of, 
arrested  at  Rio  de  Janeiro,  38;  re- 
prisals by,  against  Brazil,  40;  coop- 
erates in  restoration  of  order  in  Samoa, 
45;  Queen  of  Portugal  not  summoned 
before  tribunals  of,  46;  northeastern 
boundary  award,  81;  Dogger  Bank  in- 
cident, 98;  legislative  retorsion  by 
U.S.  against  vessels  of,  107;  pleads 
necessity  of  self-defense  in  Caroline 
affair,  122;  requests  release  of  McLeod 
in  Caroline  affair,  123;  party  to  case 
of  Perpetual  Leases  in  Japan,  127; 
party  to  Treaty  of  Paris  (1856),  134; 
denies  power  of  Russia  to  annul  Treaty 
of  Paris,  135;  submits  North  Atlantic 
Fisheries  dispute  to  arbitration  at  The 
Hague,  177;  Convention  with  U.S. 
(1818),  180-82;  regulates  fisheries  by 
Act  of  1819,  182;  Reciprocity  Treaty 
with  U.S.  (1854),  183;  Treaty  of 
Washington  with  U.S.  (1871),  184; 
joint  regulation  of  fisheries  by  France 
and,  191;  right  to  regulate  fisheries 
inherent  in  sovereign  of,  194;  conten- 
tion of,  as  to  territorial  waters,  199; 
ten-mile  rule  applied  to  bays  in  treaties 
between  France  and,  200;  lease  of  Wei- 
hai-wei  to  (1898),  206;  of  Kowloon 
to,  207;  protest  of,  against  occupation 
of  Falkland  Islands  by  Argentine  Re- 
public, 210;  occupation  of  Falkland 
Islands  by  (1833),  212;  takes  formal 
possession  of  Falkland  Islands  (1765), 
214;  dispossessed  by  Spain  (1770), 
214;  restoration  of  Falklands  to  (1771), 
214;  withdrawal  of,  from  Falklands 
(1774),  214;  protest  of,  against  Rus- 
sian ukase,  218;  treaty  with  U.S.  on 
Fur  Seal  Arbitration  (1892),  220; 
denies  U.S.  claim  to  property  right  hi 
fur  seal,  222;  legation  of,  at  Santiago, 
denies  asylum  to  refugees,  244  «.; 
mixed  commission  under  Treaty  of 


1853  with  U.S.,  248;  contention  of, 
that  slaves  become  free  in  British 
jurisdiction,  249;  claim  of,  for  death 
of  subjects  in  U.S.,  262-64;  may  not 
deport  criminals  to  U.S.,  280-83;  ex- 
pulsion of  British  subject  from  Bel- 
gium, 284-90;  claim  of,  to  perpetual 
allegiance,  320-22;  asks  Portugal  for 
extension  of  time-limit  in  case  of 
Delagoa  Bay  Railway  Company,  338— 
39;  diplomatic  intervention  of,  in 
interests  of  British  investors,  339; 
agrees  to  arbitrate  Delagoa  Bay  Rail- 
way case,  341;  award  in  favor  of,  348- 
49;  agreement  with  France  to  arbi- 
trate case  of  Dhows  of  Muscat,  350; 
engagement  of,  to  respect  independence 
of  Muscat,  350,  351;  treaties  with 
Muscat,  351;  contentions  of,  against 
francisation  of  dhows,  355-57;  im- 
pressment of  American  seamen  by, 
368;  subjects  of,  executed  by  Spanish 
authorities,  369;  receives  indemnity 
from  Spain,  370;  award  in  favor  of,  in 
Costa  Rica  Packet  case,  372;  status  of 
British  women  married  to  Greek  sub- 
jects, 375;  convention  with  France  on 
Anglo-French  marriages,  375;  agree- 
ment of,  with  U.S.  re  British  subjects 
in  American  Navy,  381;  extraterri- 
torial jurisdiction  of,  in  Samoa,  383; 
laws  of,  not  applicable  to  acts  of 
British  vessel  hi  Chilean  waters,  390- 
91;  British  ship  on  high  seas  subject 
to  laws  of,  391-92;  rule  of  reciprocity 
applied  by,  in  case  of  recapture  of 
Portuguese  vessel,  304-401;  anarchists 
not  considered  political  offenders  by, 
412-13;  controversy  with  U.S.  over 
interpretation  of  extradition  treaty, 
413-14,  416  ».;  not  required  to  re- 
store prisoner  to  France  because  of 
error  of  French  official,  416-22;  no 
right  of  asylum  hi,  418;  takes  jurisdic- 
tion over  French  merchantmen  on 
charge  of  piracy,  424-25;  restraint  of 
persons  from  manufacturing  Austrian 
paper  money  in,  425-29;  law  of  nations 
part  of  the  common  law,  427;  blockade 
of  Zanzibar  by,  for  prevention  of  slave 
trade,  430;  condemnation  by,  of 
American  vessel  in  slave  trade,  430- 
31;  collision  of  British  steamer  with 
American  sailing  vessel  on  high  seas, 
432-35;  statutes  of,  do  not  create  law 
of  sea,  434;  jurisdiction  of,  over  foreign 
shipping,  430-45;  exemption  of  Swedish 
vessels  from  British  provisions  relative 
to  overloading,  445. 


INDEX 


475 


Greece:  claim  of,  to  property  of  Zappa 
in  Roumania,  155;  abuse  of  American 
flag  in,  163;  protest  of,  against  de- 
portation of  subject  from  U.S.,  275; 
status  of  American  women  married  to 
subjects  of,  374-75;  status  of  British 
women  married  to  subjects  of,  375. 

Grevy,  President  of  France:  votes  against 
ultimatum  to  Germany,  226. 

Greytown:  bombardment  of,  by  U.S. 
warship,  119. 

Grotius:  xxxii. 

Guatemala:  right  of,  to  regulate  its  im- 
portations, 291. 

Guizot,  French  Minister  for  Foreign 
Affairs:  makes  statement  on  right  of 
French  authorities  to  remove  consul 
from  Tahiti,  24,  25. 

Habeas  corpus:  a  writ  commanding  a 
person  having  another  in  custody  to 
produce  the  body  of  the  person  de- 
tained with  the  day  and  cause  of  his 
caption  and  detention.  (Standard.) 
The  arguments  which  ensue  bring  out 
the  facts  and  the  law  and  allow  the 
court  to  render  a  judicial  decision. 

Habeas  corpus:  taken  to  secure  revision 
of  administrative  ruling  for  deporta- 
tion (Charalambis),  275. 

Hague,  The:  see  The  Hague. 

Halifax  Commission:  award  of  (1877), 
185. 

Hall:  opinion  of,  on  case  of  the  Virginius, 

370-7I. 

Hamburg:  arrest  of  seamen  on  American 
vessels  by  authorities  of,  protested  by 
U.S.,  3SoHii. 

Hammarskjold,  von:  arbitrator  in  Casa- 
blanca incident,  379. 

Hannen,  Lord:  arbitrator  in  Fur  Seal 
case,  221. 

Hanseatic  League:  ordinances  of,  434-35- 

Hardinge,  5i>  Charles,  British  Am- 
bassador to  Russia:  asks  for  explana- 
tion of  conduct  of  Baltic  Fleet,  99; 
signs  agreement  for  Commission  of 
Inquiry,  101. 

Harlan,  Justice :  arbitrator  in  Fur  Seal 
case,  221;  dissent  of,  224. 

Harrison,  President:  message  of,  on  dip- 
lomatic situation  with  Italy  (1891), 
270. 

Hay,  John,  US.  Secretary  of  State:  note 
of,  on  La  Abra  claim,  79;  transmits 
balance  of  Weil  award  to  Mexico,  81; 
negotiates  treaty  on  fisheries  (1902), 
1 86. 

Hayti:  Pellctier  award  against,  not  en- 


forced by  U.S.,  82;  Lazare  claim 
against,  not  pressed  by  U.S.,  96. 

Head  of  state:  see  Sovereigns. 

Headland  theory:  extent  of  maritime 
jurisdiction,  183. 

Help,  self:  121-26. 

Herante  Abro  Bey:  arbitrator  in  case  of 
Russia  ».  Turkey,  58. 

He  ussier:  arbitrator  in  Delagoa  Bay 
Railway  case,  341-48. 

High  seas:  protection  of  British  trawlers 
(Dogger  Bank),  99;  jurisdiction  and 
protection  of  property  distinguished, 
221;  protection  of  Ceylon  seal  fish- 
eries, 222;  exercise  of  protection  on, 
against  violation  of  revenue  laws, 
222-23;  vessel  entering  harbor  in  dis- 
tress loses  none  of  her  rights  on,  248; 
local  authorities  decide  to  detain  par- 
ties implicated  in  case  of  murder  on 
(Creole),  250;  protection  of  property 
and  person  of  nationals  on,  and  else- 
where outside  the  frontiers  of  any 
state,  368-72;  attempt  to  enforce  law 
of  allegiance  on,  368;  capture  of  vessel 
flying  American  nag  on,  369;  right  of 
self-defense  on,  370;  right  of  visit  and 
search  on,  in  time  of  peace,  370;  seizure 
of  derelict  on,  371;  jurisdiction  over 
national  vessels  on,  300  ff.;  where 
pirates  may  be  tried  for  offenses  on, 
425;  law  governing  collisions  on, 

432  ff- 

Hilton  r.  Guyot:  436-39. 

Holy  Roman  Empire:  development  of 
servitudes  in,  193. 

Holy  See:  secretary  of  nunciature  of,  at 
Paris,  expelled  (1006),  17;  Leo  XIII 
mediates  in  Caroline  Islands  dispute, 
49- 

Honey,  Mrs.,  case  of:  273-74. 

Hastes  kumani  generis :  enemies  of  man- 
kind. 

Hostile  act:  seizure  of  Brazilian  coffee 
would  be,  162. 

House  tax:  see  case  of  Perpetual  Leases 
in  Japan,  127  ff. 

Humanity:  considerations  of,  exempt 
coastal  fishing  vessels  from  capture 
as  prize,  xxxv;  regulation  of  foreign 
vessels  in  interest  of,  must  be  accepted, 
442;  U.S.  Minister  interposes  unof- 
ficially in  favor  of  Jews  in  Russia,  445. 

Hungary:  ste  Austria-Hungary. 

Hurst,  C.  J.:  commissioner  in  Alsop 
claim,  329. 

Idem  per  dnersa :  uniformity  of  principle 
through  diversity  of  practice. 


476 


INDEX 


Identic  notes:  asking  Switzerland  to  ap- 
point arbitrators,  341. 

Immigration:  nature  of  provisions  ap- 
plied to  foreign  vessels  in  relation  to, 
440. 

Immigration  and  sojourn:  regulation  of, 

275-84- 

Immunity:  from  legal  process  claimed 
by  French  Consul,  31;  of  foreign  sov- 
ereign from  suit,  46. 

Immunitie% :  see  Diplomatic  representa- 
tives; Consuls. 

Immunities  of  agents  of  international 
intercourse:  225-28. 

Imports  and  tariff:  regulation  of,  291-95. 

Impressment:  dispute  between  Great 
Britain  and  U.S.  over,  368. 

Imprisonment:  justifiable  to  effect  ex- 
pulsion, 286;  President  authorized  to 
use  reprisals  to  secure  release  of 
Americans,  322. 

Income  tax:  diplomatic  and  consular 
authorities  secure  remission  of,  274. 

Indemnitaires,  Russian:  moratory  in- 
terest claimed  by,  from  Turkey,  59. 

Indemnity:  deferred  payments  of  in- 
terest on,  by  Turkey,  58;  not  con- 
sidered a  gift,  in  Russia  v.  Turkey,  63; 
indemnity  returned  to  China  by  U.S., 
117  ff.;  China  pays,  to  Japan,  203; 
U.S.  pays,  to  Italy  for  New  Orleans 
lynching,  270;  payment  of,  to  be  made 
to  claimants'  governments,  341;  ex- 
emplary and  penal,  claimed  by  U.S., 
341;  not  granted  against  Portugal, 
347 ;  simple  interest  usually  allowed  in 
awards  of,  348;  paid  by  Spain  to  Great 
Britain  and  U.S.  in  Virginius  case,  370. 

Independence:  155;  see  also  Extraterri- 
toriality, under  case  of  the  Exchange, 
230  ff. 

Indian  treaties:  not  international  law, 
vii. 

Indirect  damages:  excluded  by  commis- 
sion in  Paquet's  case,  290. 

Individuals:  place  of,  in  international 
law,  xxxi;  nationality  of,  311-20. 

Inequality:  basis  for  assessment  of  ex- 
penses of  Postal  Union,  454. 

Informal  intercourse:  of  diplomatic  rep- 
resentatives, many  questions  settled 
by,  47- 

Infra  prasidia:  a  term  used  of  prizes 
brought  within  the  complete  power  of 
the  state  of  the  captor. 

Infra  prasidia :  bringing,  might  operate 
to  vest  property,  395. 

Inhabitants:  meaning  of,  in  Treaty  of 
1818,  195  ff. 


Inquiry,  International  Commission  of: 
in  Dogger  Bank  incident,  101-06. 

Insanity:  refusal  to  repatriate  nationals, 
403- 

Insoumission :  expatriated  Frenchmen 
returning  to  France  punished  for, 

323-24- 
Inspection   of  American  pork   exports: 

29.2-95- 

Institut  de  Droit  International:  helps  to 
elucidate  principles  of  international 
law,  xxix. 

Insurrection:  recognition  of  belligerency 
not  necessary  to  judicially  establish 
fact  of  existence  of,  157. 

Insurrectionists:  acts  of,  along  Canadian 
frontier,  121. 

Intercourse:  international,  rights  and 
immunities  of  agents  of,  3-46;  in- 
formal, of  diplomatic  representatives, 
many  questions  settled  by,  47,  225-28. 

Interest:  moratory,  claimed  by  Russia 
from  Turkey,  58;  moratory,  distin- 
guished from  compensatory,  61;  reser- 
vation for  payment  of,  omitted  by 
Russia,  61;  failure  to  make  reservation 
for,  pleaded  as  exception  by  Turkey, 
61;  and  considered  by  tribunal  as 
well  taken,  63,  64;  rate  of,  allowed  on 
Canevaro  claim,  319;  moratory,  al- 
lowed in  Delagoa  Bay  Railway  award, 
347-48;  simple,  usual  method  of 
calculation  in  awards  of  indemnity, 

349- 

Interest-damages:  question  of,  in  Russia 
v.  Turkey,  58-64;  always  compensa- 
tory, 62. 

Internal  affairs:  interference  of  diplo- 
matic representatives  in,  ground  for 
dismissal,  13;  powers  require  China 
to  prohibit  anti-foreign  societies,  115. 

International  Bureau  at  The  Hague:  ap- 
portionment of  expenses  of,  454. 

International  Bureau  of  the  Postal 
Union:  453. 

International 'claims:  agreement  of  gov- 
ernments as  bar  to,  55;  proscription 
as  bar  to,  55-57;  laches  as  bar  to,  55. 

International  Commission  of  Inquiry:  in 
Dogger  Bank  incident,  101-06. 

International  commissions  for  the  regula- 
tion of  rivers:  450-51. 

International  differences:  methods  of 
procedure  for  the  settlement  of,  47- 
126;  three  classes  of,  47;  convention 
for  the  peaceful  settlement  of,  54. 

International    Hague    Conferences:    52- 

54- 
International    intercourse:    agents    of, 


INDEX 


477 


rights  and  immunities  of,  3-46,  225- 
28. 

International  law:  cases  distinguished 
from  certain  municipal  decisions,  vii; 
no  technical  language  of,  z;  resolution 
in  regard  to  the  teaching  of,  viii-ix  «.; 
nature  of,  xxx-xxxi;  Act  of  7  Anne,  cap. 
12,  declaratory  of,  5;  is  part  of  law  of 
land  in  England,  21  «.;  territorial 
jurisdiction  over  crime  a  rule  of,  87; 
formation  of  new  rules  of,  153;  physical 
limits  within  which  a  state  is  recog- 
nized as  sovereign  and  responsible  for 
the  enforcement  of,  218-25;  U.S.  con- 
tends, to  be  "international  standard 
of  justice  and  advanced  by  analogy," 
221;  Great  Britain's  views  as  to  nature 
and  extent  of,  222;  municipal  admin- 
istration of,  in  case  of  Charalambis, 
275;  a  true  rule  of,  calls  for  observance 
by  the  nations,  395;  obligation  to 
observe  a  rule  of,  comes  from  recipro- 
city of  practice,  395;  when  substantial 
justice  is  rule  of,  396;  nature  and 
origin  of  rules  of,  454. 

International  obligations:  Germany  com- 
plains that  Swiss  legislation  is  inade- 
quate to  maintain,  143;  U.S.  amended 
law  to  discharge,  389. 

International  police:  Germany  claims 
that  French  in  Morocco  are  acting  as, 
382;  Germany  distinguishes  immuni- 
ties of  forces  acting  as,  and  those  of 
military  occupant,  382. 

International  rivers:  navigation  of  the 
Mississippi,  296  #;  use  of,  450. 

International  unions:  451-54. 

Intemuncio:  copy  of  Koszta  passport 
placed  in  hands  of  Austrian,  300. 

Interposition  (see  also  Protection):  de- 
termination of  interest  justifying  gov- 
ernmental, 55. 

Interpretation  of  treaties:  127-34;  diffi- 
culty in  regard  to  (Perpetual  Leases), 
referred  to  arbitration,  127  ff.\  his- 
tory of  negotiations  as  aid  to  discover 
will  of  parties,  145;  by  collection  of 
interpretation  given  to  same  terms  by 
other  governments,  145;  indications 
for,  in  spirit  and  purpose  of,  146. 

Intervention:  collective,  112;  diplomatic, 
of  U.S.  invoked  by  Alsops,  328;  diplo- 
matic, to  protect  interests  of  nationals 
in  foreign  corporations,  334-48. 

Investigation:  Germany  refuses  to  make 
further,  in  regard  to  Wonlgemuth.  140. 

Inviolability:  Dhows  of  Muscat,  flying 
French  flag,  entitled  to,  in  waters  of 
Muscat,  359. 


Invitation:  of  Nicholas  II  to  peace  con- 
ference, accepted  by  all  invited  states, 
53;  from  the  Netherlands  to  powers  to 
meet  at  The  Hague,  53. 

Iradl:  a  written  Turkish  decree. 

Irregularity:  in  appointment  of  umpire 
ground  for  annulling  award,  60-74. 

Italian  earthquakes:  446-49. 

Italy:  violation  of  archives  of  French 
Consulate  at  Florence,  34;  demands 
of,  upon  U.S.  re  lynching  of  Italians 
at  New  Orleans,  264-70;  minister  of, 
leaves  Washington,  267;  accepts  in- 
demnity from  U.S.,  270;  arbitration 
of  the  Canevaro  claim  against  Peru, 
316-20;  liability  of  former  subjects 
of,  to  military  service  in,  324  «.;  re- 
fusal of,  to  extradite  nationals  for 
crimes  committed  abroad,  373,  400- 
n ;  extradition  by  U.S.  of  American 
citizen  to,  408-11;  assists  in  blockade 
of  Zanzibar  for  suppression  of  slave 
trade,  430;  American  relief  for  victims 
of  earthquakes  in,  446-49. 

Jackson,  President :  favors  acceptance  of 
award  on  northeastern  boundary,  82. 

Jally,  case  of:  French  Council  of  State 
(1859)  declares  local  authorities  com- 
petent to  exercise  jurisdiction  over 
crew  in  case  of  homicide  on  foreign 
vessel,  258-59. 

Japan:  chancellor  of  legation  of,  mur- 
dered at  Peking,  1 13;  case  of  Perpetual 
Leases  in,  at  The  Hague,  127;  Treaty 
of  Shimonoseki  between  China  and 
(1895),  203;  cession  of  Liao-tung  to, 
203;  retrocession  of  Liao-tung  to 
China  by,  203;  Treaty  of  Portsmouth 
between  Russia  and,  transferring  lease 
of  Port  Arthur  to,  207;  demands  of, 
upon  China  (1915),  208;  extension  of 
lease  of  Port  Arthur,  208. 

Jefferson,  President:  asserts  rights  of  U.S. 
to  free  navigation  of  Mississippi,  296; 
on  status  of  seamen  on  American  ves- 
sels, 361. 

Jenkins,  Sir  Leoline:  relates  the  trial  of 
privateers  for  piracy,  424-25. 

Jews:  protection  of,  in  Persia,  445. 

John  and  Sarah :  release  of  English  fish- 
ing vessel,  by  French  prize  court,  xxv. 

Joint  action:  of  powers  in  China,  iiiff. 

Jortin  case:  26-30. 

Judgments  (see  also  Rts  jnditata):  foreign, 

4J&-J9- 

Judifaia,  res :  64. 
Jurisdiction  (set  also  Extraterritoriality: 

Extraterritorial  crime):  incompetence 


478  INDEX 


of  local  authorities  in  case  of  official 
acts  of  consul,  27  ff.\  of  Hayti  to  punish 
offenses  in  her  own  waters,  86-87; 
territorial,  over  crime  a  rule  of  inter- 
national law,  87;  legal  fiction  of  extra- 
territoriality of  ambassadors  cannot 
be  extended  to  individuals  not  related 
to  them,  230;  exercise  of  national,  sud- 
denly, without  notice,  a  violation  of 
faith,  232;  exclusive  nature  of  national, 
232;  cannot  be  extended  to  sovereigns, 
232-33;  limits  of,  of  consuls  over 
vessels  and  crews,  246  ff.;  vessel  en- 
tering harbor  in  distress  loses  none  of 
her  rights  on  high  seas,  248;  entry  of 
Creole  into  British  jurisdiction  result 
of  crime,  249;  slaves  become  free  on 
entering  British,  249;  local  authori- 
ties detain  parties  implicated  in  mur- 
der on  high  seas  (Creole),  250;  extent 
of,  over  crew,  left  to  consuls  as  meas- 
ure of  comity,  255;  local  authorities 
competent  to  exercise,  over  crew  in 
case  of  homicide  on  vessel,  258-59; 
enforcement  of  law  of  allegiance  within 
territorial,  differs  from  attempt  to  en- 
force it  on  high  seas,  368;  over  vessels 
dependent  on  ownership,  not  on  regis- 
try, 371;  exercise  of,  over  repatriated 
nationals  for  acts  done  abroad,  373- 
74;  exercise  of,  over  nationals  resident 
abroad,  373-77;  consular  or  extra- 
territorial, 377-85;  exercise  of,  over 
aliens  for  acts  done  within  another 
state,  386-89;  for  acts  done  abroad  as 
agent  of  foreign  state,  390-91;  over 
pirates,  425;  maritime,  432-35. 

Jurists,  international:  Greece  and  Rou- 
mania  consult,  in  regard  to  Zappa 
affair,  155. 

Jury  de  medietate  lingua:  a  British 
method  of  selecting  a  jury  for  the  trial 
of  aliens,  consisting  half  of  aliens  and 
half  of  nationals. 

Jury  de  medietate  lingua:  Warren  and 
Costello  claim  right  of  trial  by,  321. 

Jus  gentium :  generally  and  inaccurately 
employed  to  mean  international  law. 
Formerly  employed  in  another  inac- 
curate sense  to  designate  diplomatic 
immunities. 

Jus  gentium :  see  International  Law. 

Jus  sanguinis:  right  by  descent;  applied 
to  nationality  as  determined  by 
nationality  of  parents. 

Jus  sanguinis  and  jus  soli  in  Chile: 
315-16. 

Jusserand,  French  Ambassador  at  Washing- 
ton :  notes  of,  in  case  of  Roussel,  2  76-78. 


Jus  soli:  right  of  the  soil  or  territorial 
sovereign.  In  reference  to  nationality 
it  denotes  the  acquisition  of  the  nation- 
ality of  the  local  sovereign  by  birth 
within  its  jurisdiction. 

Kaznakoff,  Admiral:  designated  Rus- 
sian commissioner,  Commission  of 
Inquiry,  Dogger  Bank  incident,  102; 
unable  to  act,  102. 

Kent,  Chancellor :  on  national  character, 
306,  308. 

Ketteler,  Baron  von,  German  Minister  to 
China:  murdered  at  Peking  (1900), 

"3- 
Kiao-chau:  lease  of,  to  Germany  (1898), 

203-05;  expulsion  of  Germany  from 

(1914),  207. 
King  of  the  Netherlands:  award  of,  on 

northeastern   boundary   of   the   U.S., 

81. 

Knox,  U.S.  Secretary  of  State:  311,  314. 
Koszta  case:  51-52,  298-311. 
Kowloon:    lease   of,    to    Great   Britain 

(1898),  207. 
Kriege:  arbitrator  in  Casablanca  incident, 

379- 
Kriiger,     Paul:     negotiates    convention 

with  Portugal,  335,  336. 
Kwang-chau:  lease  of,  to  France  (1898), 

206. 

La  Abra:  see  Weil  and  La  Abra  cases, 
75-8i. 

Labrador:  liberty  to  fish  on  coast  of,  181; 
liberty  to  dry  fish  on  coast  of,  181. 

Laches:  as  bar  to  international  claims, 
55;  Turkey  pleads  Russia  guilty  of, 
61. 

Lamirande  case:  action  of  France  in, 
cited  as  precedent  (Savarkar  case), 
420-21. 

Lammasch,  Professor :  arbitrator  in  North 
Atlantic  Fisheries  case,  187;  arbitrator 
in  case  of  Dhows  of  Muscat,  353. 

Lamsdorff,  Count,  Russian  Foreign  Min- 
ister :  signs  agreement  for  Commission 
of  Inquiry  on  Dogger  Bank  incident, 
101. 

Language:  English  Ambassador's  apology 
translated  into  Russian  and  German, 
6;  China  erects  expiatory  monument 
inscribed  in  Latin,  German,  Chinese, 
114;  French  text  of  joint  note  to  be 
authoritative,  117;  meaning  of  wiihlen, 
137  n.\  meaning  of  CM/  erfordern  in 
treaty,  144;  Postal  Union  publishes 
journal  in  French,  English,  and  Ger- 
man, 453. 


INDEX 


479 


Lansdowne,  Lord,  British  Foreign  Secre- 
tary: statement  of,  on  Dogger  Bank 
incident,  100;  concludes  agreement 
with  France,  re  Dhows  of  Muscat, 
35°. 

Lapse  of  time:  extinguishment  of  obliga- 
tions by,  52. 

Lardy:  arbitrator  in  case  of  Russia  v. 
Turkey,  58. 

Law  of  nations  (see  also  International 
law):  part  of  law  of  England,  xxxii; 
piracy  under,  distinguished  from  piracy 
by  municipal  statute,  86;  definition 
of,  by  Congress,  re  expatriation,  321; 
part  of  common  law  of  England,  427. 

Lawrence,  case  of  the  Brig:  430-31. 

Lawrence  extradition  case:  referred  to, 
416  n. 

Lazare  claim  (see  Pelletier  claim,  82- 
89):  06-98. 

Leases  and  servitudes:  177-208. 

Leases:  Perpetual,  in  Japan,  127-33;  of 
territory  in  China,  203-08. 

Legation:  asylum  in  (Ripperda's  case), 
16;  closing  of,  at  Caracas  by  U.S., 
100-12;  American,  in  Venezuela  placed 
in  charge  of  Brazilian  Minister,  112; 
extraterritoriality  of,  is  subject  to 
local  jurisdiction  (Nikitchenkoff),  228- 
29;  U.S.  Minister  at  Santiago  offers 
asylum  in,  243;  of  U.S.  at  Santiago 
placed  under  surveillance  because  of 
harbored  refugees,  245;  surveillance  of, 
in  case  of  asylum  not  contrary  to 
law,  245. 

Legations:  228-30. 

Legations:  rights  of  powers  to  defend, 
in  China,  115. 

Legislation:  effect  of  national,  on  prop- 
erty of  foreign  government,  159; 
France  withdraws  proposed,  objec- 
tionable to  Great  Britain,  389. 

Legislative  recognition:  of  rights  of  foreign 
states,  427. 

Legislative  retorsion:  against  shipping, 
107;  U.S.  Secretary  of  Agriculture 
proposes,  against  German  wines,  294. 

Leo  XIII,  Pope:  "Proposition"  of,  in 
controversy  over  Caroline  and  Pelew 
Islands,  49. 

Leopold,  King  of  the  Belgians:  award  of, 
in  case  of  the  Forte,  41. 

Letter  of  credence:  President  Buchanan 
transmits,  to  Rush  upon  change  of 
government  in  France,  166. 

Letters  of  recall:  Russian  Ambassador 
departs  without,  3;  arrangements  that 
Russian  \\  mlMMiVn  should  ask  for,  7. 

Letters  rogatory: 


Lewis,  Samuel:  member  of  U.S.-Panama 
Joint  Commission  (1913),  174. 

Lex  loci:  application  of,  to  offenses  a  rule 
of  international  law,  87. 

Lex  loci  jori :  the  local  or  territorial  law 
of  the  country  to  which  a  court, 
wherein  an  action  is  brought  or  other 
legal  proceedings  are  taken,  belongs. 
(Dicey:  Conflict  of  Laws  [ad  ed.l, 
p.  78.) 

Lex  loci  fort:  obligations  enforced  ac- 
cording to,  56. 

Liability:  assumption  of  Bolivian,  by 
Chile,  328;  of  conqueror  for  local 
obligations,  330-33;  of  Chile  for  diplo- 
matic undertakings,  330-33. 

Liao-tung:  cession  of,  to  Japan  (1895), 
203;  retrocession  of,  to  China,  203. 

Libel:  conviction  of  Peltier  for,  of  Napo- 
leon, 429;  Lord  George  Gordon  con- 
victed for,  of  Queen  of  France,  429. 

Liberty:  difference  between  "right" 
and,  in  regard  to  fisheries,  178;  and 
life  of  nationals  of  other  states,  pro- 
tection of,  430-45. 

Liberum  veto:  possession  of  the  veto  by 
each  member  of  the  Polish  Diet  so 
that  unanimity  was  necessary  to 
transact  business. 

Liberum  veto:  inconvenience  of,  at  The 
Hague,  etc.,  452. 

License:  sovereigns  enter  foreign  terri- 
tory under  implied,  of  immunity,  233. 

Lieber,  Francis:  work  of,  followed  by 
Conference  of  Brussels,  54. 

Life  and  liberty:  protection  of,  of  na- 
tionals of  other  states,  430-45. 

Limitation:  effect  of,  to  bar  claim,  55. 

Limits,  physical,  within  which  a  state  is 
recognized  as  sovereign  and  rrnpnnri 
ble  for  the  enforcement  of  interna- 
tional law:  218-25. 

Little,  John,  U  S  .-V  enesiiflan  Commis- 
sion of  1885 :  award  of,  in  claim  of  John 
H.  Williams,  55. 

Livingston,  US.  Secretary  of  State:  note 
of,  re  Falkland  Islands,  an. 

Loadline,  British:  made  to  apply  to 
foreign  vessels,  444. 

Loans:  Brazil  raises,  on  coffee,  159. 

Lohman:  see  Savorin  IxJinum. 

London:  Treaty  of  (1871),  137. 

Lord  Stowcll:  srt  Sir  William  Scott. 

Lorimer:  on  custom  as  a  source  of  in- 
ternational law,  xxvii  n. 


Lourenco  Marques:  provision  for  rail- 
way from,  to  Transvaal.  334-35. 

Lucrttm  ctstans:  element  of,  in  fixing 
compensation,  347. 


480 


INDEX 


Lumb,  Alfred,  case  of:  280-83. 

Lutz:    see   Wohlgemuth   affair,   137-49. 

Machado,  Juan  N.,  Jr.:  fraudulent  ap- 
pointment of,  as  umpire  for  U.S.- 
Venezuela Claims  Commission  (1866), 

7i- 

Mackintosh,  Sir  James:  on  mitigation 
in  practice  of  war,  xxxiv. 

Madison,  President:  message  of,  on  im- 
pressment, 368. 

Madrid:  Convention  of,  grants  to  Ger- 
many most-favored-nation  rights  in 
Morocco,  382. 

Magdalen  Islands:  liberty  to  fish  on 
shores  of,  181,  201. 

Mails:     see    Universal     Postal     Union, 

45 1  ff. 

Majority:  vote  of,  in  decision  of  Postal 
Union,  453. 

Malouines:  see  Falkland  Islands. 

Malvinas:  see  Falkland  Islands. 

Manchester,  Lord,  English  Ambassador 
to  Venice:  Venetian  customs  officials 
punished  for  offense  against,  5. 

Mandamus:  a  writ  or  order  to  any  per- 
son or  inferior  court  to  perform  some 
specific  duty. 

Mandamus:  writ  of,  to  compel  distribu- 
tion on  awards,  78,  79. 

Mandelstam:  arbitrator  in  case  of  Rus- 
sia v.  Turkey,  58. 

Manu  militari:  official  use  of  force. 

Marcy,  U£.  Secretary  of  State:  opinion 
of,  on  refusal  of  exequatur  to  consul, 
18;  discusses  consular  privileges  in 
letter  to  minister  at  Paris  (1854),  32; 
also  in  note  to  Portuguese  Charge^ 
(J85S),  33  «•;  agrees  to  salute  French 
national  flag,  33;  note  of,  on  claims 
arising  from  bombardment  of  Grey- 
town,  120;  note  of,  in  Koszta  case, 
298-311;  on  rights  of  American  seamen 
in  foreign  port,  350-61. 

Mare  clausum:  consideration  of,  re 
Behring  Sea  is,  219  ff. 

Marginal  seas:  exercise  of  protection  on, 
against  violation  of  revenue  laws, 
222-23;  extent  of,  372. 

Marine  Ordinance  of  Louis  XTV:  435. 

Maritime  Frontier  Arbitration:  omitted, 
vi  ». 

Maritime  jurisdiction  (see  also  Jurisdic- 
tion) :  extent  of,  according  to  headland 
theory,  183;  difficulties  in  definition 
of  bays,  183;  in  case  of  Fuca  Strait, 
199;  Russia  recognizes  limit  of  cannon 
shot,  219,  432-35- 

Marriage:     conflict    between    laws    of 


Greece  and  U.S.,  374;  of  American 
women  to  subjects  of  Greece,  374-75. 

Marshall,  Chief-Justice:  on  equality  of 
nations,  153;  opinion  of,  in  the  Ex- 
change case,  231. 

Martens,  F.  de:  arbitrator  in  Pious  Fund 
case,  66;  on  Nikitchenkoff  case,  229  «.; 
award  of,  in  Costa  Rica  Packet  case, 
372. 

Masonic,  case  of  the:  361-67. 

Mattueof,  Ambassador  of  Peter  the  Great, 
case  of:  3-7. 

Matzen,  Professor:  arbitrator  in  Pious 
Fund  case,  66. 

McLeod  case:  121-23;  389. 

Measure  of  damages:  58-64,  366-67. 

Mediation:  of  Leo  XIII,  in  Caroline 
Islands  dispute,  49;  King  of  the  Nether- 
lands as  arbitrator  suggests  com- 
promise boundary,  81-82;  arbitral 
tribunal  suggests  act  of  grace,  263. 

Mediation  and  good  offices:  49-52. 

Merchant  Shipping  Act:  439-45. 

Merchant  vessels:  246-59. 

Mexican  border,  cattle  on:  401. 

Mexico:  claim  of  U.S.  against,  in  Pious 
Fund  case,  64;  fraudulent  claims 
against  (Weil  and  La  Abra  cases),  75; 
assumption  of  jurisdiction  by,  over 
offenses  committed  abroad,  386-89; 
rule  of  reciprocity  applied  by  U.S. 
and,  with  respect  to  cattle  on  border, 
401. 

Mikitschenkoff:  see  Nikitchenkoff,  228. 

Military  necessity:  as  justification  for  ac- 
tion of  Russian  Baltic  fleet,  104,  106. 

Military  occupation:  French  rights  of, 
in  Casablanca,  380;  Germany  dis- 
tinguishes between  rights  of,  and 
forces  acting  as  police,  382. 

Military  service:  test  of  whether  alien 
can  be  enrolled  for,  271;  obligation  of 
resident  aliens  to  perform,  271  ff.; 
may  be  required  of  those  domiciled, 
307;  U.S.  asks  whether  France  will 
hold  to,  minor  naturalized  in  U.S.  by 
father,  312;  Italian  law  in  regard  to, 
and  expatriation,  324  «.;  liability  to, 
cause  of  arrest  of  seaman  on  U.S. 
vessel,  359-60. 

Ministerial:  pertaining  to  an  act  or  duty 
performed  in  accordance  with  legal 
authority  rather  than  with  regard  to 
propriety,  judgment,  etc.;  mandatory, 
as  opposed  to  judicial  or  discretionary. 
(Standard.) 

Ministers  (see  also  Diplomatic  repre- 
sentatives): basis  for  the  immunities 
of,  from  jurisdiction,  234. 


Minors:  effect  of  naturalization  of  father, 


Missionaries:  protection  of  , 

Mississippi:  early  rlaim«  of  U.S.  to  free 
navigation  of,  296. 

Mixed  commission:  under  Treaty  of  1866 
between  U.S.  and  Mexico,  65;  under 
Convention  of  1866  between  U.S.  and 
Venezuela,  69;  between  U.S.  and  Vene- 
zuela (1003),  89. 

Mob  violence:  responsibility  of  govern- 
ment in  case  of,  268  ff. 

Mobilization:  of  British  fleets  after 
Dogger  Bank  incident,  99. 

Modus  vivendi  :  in  diplomacy,  a  temporary 
arrangement  between  two  sovereign- 
ties providing  for  the  conduct  of  cer- 
tain affairs  pending  negotiations  for 
a  treaty  on  the  same  subject-matter. 
(Standard.) 

Modus  vivendi:  between  Great  Britain 
and  U.S.  relative  to  fishing,  186. 

Money:  prerogative  of  states  as  to,  pro- 
tected by  law  of  nations,  427. 

Moore,  John  Basse  tt:  on  difficulty  with 
arbitration,  vi  n.;  criticized  opinion 
in  Hilton  r.  Guyot,  438  n. 

Moratory  interest:  interest  accruing  by 
reason  of  delay  in  the  payment  of 
sums  due. 

Moratory  interest:  claimed  for  Russian 
indcmnitaircs,  58;  distinguished  from 
compensatory,  61;  obligation  for,  in 
international  law  denied  by  Turkey, 
61;  obligation  to  pay,  admitted  by 
tribunal,  63,  64;  allowed  in  Delagoa 
Bay  Railway  case,  347. 

Morgan,  Senator:  arbitrator  in  Fur  Seal 
case,  221;  dissent  of,  224. 

Morocco:  effect  of  military  occupation 
upon  consular  jurisdiction  in,  382-84; 
most-favored-nation  rights  in,  382; 
jurisdiction  of  U.S.  over  Confederate 
sailors  in,  411-12. 

Most-favored-nation  clause:  in  treaties 
stipulates  that  "all  favors  which 
either  contracting  party  has  granted  in 
the  past  or  will  grant  in  the  future  to 
any  third  state  must  be  granted  to 
the  other  party."  (Oppenheim.) 

Most-favored-nation  treaty:  between 
France  and  Muscat,  351;  privileges 
of,  enjoyed  by  Germany  in  Morocco, 

382. 
Motono,  Japanese  Ambassador  at  Paris: 

arbitrator  in  case  of  Perpetual  Leases 

in  Japan,  130. 
Mouravieff,  Count,  Russian  Minister  for 

Foreign    Affairs:     communicates     to 


INDEX  481 

diplomatic  corps  rescript  from  Tsar 
suggesting  international  conference  to 
restrict  armaments,  52. 

Municipal  law:  decision  in,  distinguished 
from  international  law,  vii;  cannot  be 
criterion  to  settle  international  dis- 
pute in  third  state,  301;  Peru  submits 
interpretation  of  her,  to  arbitration, 
316. 

Murder:  on  high  seas,  local  authorities 
decide  to  detain  parties  implicated 
(Creole),  230. 

Muscat:  engagement  of  France  and  Great 
Britain  to  respect  independence  of 
Sultan  of,  350;  authorization  of  sub- 
jects of,  to  fly  French  flag,  350-52; 
privileges  of  extraterritoriality  in, 
351;  most-favored-nation  treaty  be- 
tween France  and,  351;  treaties  be- 
tween Great  Britain  and,  351;  protest 
of,  against  francisation,  352;  upheld 
by  Great  Britain,  352;  status  of 
French  prot£g6s  in,  defined  by  ••ml, 
358,  359- 

Myers  and  Tunstall,  case  of:  411-12. 

Nalbandian,  extradition  of,  case  of:  403- 
08. 

Napoleon  III,  Emperor  of  the  French: 
libel  filed  in  name  of,  against  the 
Sapphire,  168;  suit  not  abated  by  de- 
position of,  169. 

Napoleon:  seizure  of  the  Exchange  under 
decrees  of,  230;  Peltier  convicted  for 
libel  of,  429. 

Nassau:  liberation  of  American  slaves 
at,  248. 

National  character:  Marcy  discusses 
domicile  in  relation  to,  305. 

National  courts:  recourse  to,  open  to 
aliens,  109-10;  Greece  objects  to  sub- 
mission of  its  rights  in  Zappa  estate 
to  Roumanian,  155;  jurisdiction  of, 
to  apply  Sherman  Act  in  re  Brazilian 
coffee.  161. 

National  legislation:  expulsion  in  viola- 
tion of,  considered  abusive,  *oi; 
irregularity  of  rendition  according  to, 
not  material  in  international  law 
(Savarkar).  423. 

National  treatment:  aliens  entitled  to, 
only  in  case  of  mob  violence,  269. 

Nationality  (see  also  Basis  of  protec- 
tion, 298  ff.):  effect  of  conquest  on 
transfer  of,  172;  of  individuals,  jn- 
ao;  Spanish  law  regarding  children  of 
Spaniards,  315;  criterion  adopted  by 
Permanent  Court  to  determine,  of 
Canevaro,  318;  exercise  of  dli*enship 


482 


INDEX 


determines,  318;  status  of  Alsop  Com- 
pany in  dispute,  326-34;  right  of  U.S. 
to  protect  property  of  American 
citizens,  329;  claim  of  subjects  to  be 
removed  from  jurisdiction  of  sover- 
eign, 352;  domicile  not  equivalent  in 
effect  to,  356;  seaman  considered  to 
have  nationality  of  vessel,  361;  Ger- 
many considered  native  of  Alsace- 
Lorraine  naturalized  in  France  as 
German,  379. 

Nationality  and  protection  of  corpora- 
tions: 325-50. 

Nationality  and  protection  of  vessels: 
350-68. 

Nationals:  diplomatic  intervention  to 
protect  interests  of,  in  foreign  corpora- 
tion, 334-48;  relation  of  governments 
to  claims  of,  341;  protection  of  prop- 
erty and  person  of,  on  the  high  seas 
and  elsewhere  outside  the  frontiers 
of  any  state,  368-72;  France  and  Italy 
refuse  to  extradite,  373;  exercise  of 
jurisdiction  over  repatriated,  for  crimes 
and  acts  done  abroad,  373-74;  exer- 
cise of  jurisdiction  over  resident, 
abroad,  374-77;  refusal  to  extradite, 
411  n.\  protection  of  life  and  liberty 
of,  belonging  to  other  states(,  439-45. 

Naturalization:  little  naturalization  ob- 
tained in  Roumania,  155;  of  Dubuc,  a 
minor,  through  naturalization  of  father, 
312. 

Nature,  law  of:  Jefferson  bases  naviga- 
tion of  Mississippi  on,  296;  situation 
of  Koszta  under,  304. 

Navigation  of  European  rivers:  450. 

Necessity:  all  private  interests  give  way 
to,  of  war,  xxxv;  military,  as  justifica- 
tion for  action  of  Russian  Baltic  fleet, 
104,  106;  Lord  Ashburton  expresses 
,  regret  for  violation  of  U.S.  territory 
on  plea  of,  122;  as  test  of  enrollment 
of  aliens  for  military  service,  271. 

Negotiation:  of  treaties,  126;  by  German 
Government  to  secure  concessions  in 
return  for  admission  of  pork,  293-94. 

Negotiations:  history  of,  as  aid  to  dis- 
cover will  of  the  parties,  145. 

Netherlands:  instructions  of  Great 
Britain  to  seize  Dutch  fishing  vessels, 
xxxiv;  government  of,  invites  powers 
to  meet  at  The  Hague,  53;  award  of 
king  of,  on  northeastern  boundary,  81; 
right  of,  to  compel  U.S.  citizen  to 
render  military  service,  270;  award 
against,  in  Costa  Rica  Packet  case, 
372;  cooperation  of,  in  blockade  of 
Zanzibar,  430. 


Netherlands,  King  of  the:  arbitrator  on 
northeastern  boundary  of  U.S.,  81-82. 

Neutrality:  cases  not  selected  as  exam- 
ples of  international  law  of  peace,  x; 
judicial  decisions  of  national  courts 
not  themselves  precedents,  viii  n.\ 
violation  of  laws  of,  ground  for  revoca- 
tion of  exequatur,  31;  Russia,  Ger- 
many, and  Austria  warn  Switzerland 
that  she  is  abusing  her,  139;  moment 
for  recognition  of  revolutionary  gov- 
ernment without  departing  from  obliga- 
tions of,  165. 

Neutralization  of  the  Black  Sea:  134-37. 

New  evidence:  96;  ground  for  annulment 
of  award,  95-98. 

New  governments:  166. 

New  Orleans:  asylum  on  Spanish  war- 
ships at,  refused,  242;  lynching  of 
Italians  at,  264-70. 

New  Orleans  lynching,  the:  264-70. 

New  rules:  formation  of,  of  international 
law,  153;  equitable  compromise  basis 
of  all,  154. 

New  states:  164. 

Newfoundland:  liberty  to  fish  on  speci- 
fied coasts  of,  181,  201;  liberty  to  cure 
fish  on  southern  part  of  coast  of,  181; 
remains  outside  of  Confederation, 
184;  responsibility  of  Great  Britain 
for  legislation  of,  184;  attack  on 
American  fishermen  at  Fortune  Bay, 
185;  regulation  of  fisheries  by,  185, 
186;  institution  of  permanent  mixed 
fishing  commission  for,  195. 

Newton,  the:  246-48. 

Nicaragua:  refuses  exequatur  to  U.S. 
Consul,  18;  controversy  of,  with  Grey- 
town  authorities,  118. 

Nicholas  II,  Tsar  of  Rtissia:  expresses 
regret  for  Dogger  Bank  incident,  100. 

Nikitchenkoff  case,  the:  228-30. 

Non-intervention:  policy  of  U.S.,  167. 

Non-observance:  right  of  termination 
of  the  German-Swiss  treaty  for,  con- 
tested by  Switzerland,  146. 

North  Atlantic  Fisheries  Arbitration, 
the:  177-202. 

North  Sea  Convention:  ten-mile  rule 
applied  to  bays  by,  200. 

North.  Sea  incident:  see  Dogger  Bank. 

Northeastern  Boundary  of  the  United 
States  Arbitration:  81-82. 

Norway  and  Sweden:  note  of,  re  applica- 
tion of  British  deckload  provision  to 
foreign  vessels,  441-42. 

Notes:  exchange  of,  as  record  of  diplo- 
matic agreement,  48;  agreement 
effected  by  exchange  of,  416. 


Notice:  U.S.  contends  established  right 
in  fisheries  not  to  be  withdrawn  with- 
out, 21 1 ;  Great  Britain  gives,  of  inten- 
tion to  hoist  flag  over  Falklands,  212; 
exercise  of  national  jurisdiction  with- 
out, constitutes  violation  of  faith,  232. 

Nova  Scotia:  enactment  of  Hovering 
Act  by  legislature  of,  183;  interpreta- 
tion of  term  "bays"  by  authorities 
of,  183;  "headland  theory"  advanced 
by,  183. 

Nunciature:  secretary  of,  expelled  from 
France  (1006),  17. 

Obiter  dictum :  remarks  not  directly  per- 
tinent to  the  decision  of  the  case. 
An  opinion  by  a  judge  on  a  point  not 
essential  to  the  decision  on  the  main 
question.  (Standard.) 

Obligations:  enforcement  of,  according 
to  the  lex  loci  fort,  56;  to  foreign  gov- 
ernment not  to  be  urged  against  rights 
held  under  grant,  342. 

Obligations  and  things:  168. 

Occupation:  effective,  as  title  to  sov- 
ereignty, 49;  continuation  of,  by  powers 
in  China,  115;  rights  derived  from 
(Falkland  Islands),  208  /.;  Great 
Britain  contends  that  seals  are  res 
ntillitis,  223;  military,  of  coast  of  Bolivia, 
by  Chile,  327;  levy  of  duties  by  Chile 
during,  327. 

Officer:  naval,  of  U.S.,  summoned  before 
French  tribunal,  43;  declines  to  re- 
ceive citation,  43;  commander  of  St. 
Louis  examines  Koszta  claim  to  pro- 
tection, 300;  demands  Koszta's  re- 
lease, 300;  obligation  of,  to  resist 
wrong  committed  against  Koszta 
under  law  of  nature,  305. 

Officers:  office  of  consul  at  an  end  when 
consular  flag  hauled  down,  23  n.; 
rights  and  immunities  of,  when  acting 
as  agents  of  international  intercourse, 
38-46;  arrest  and  imprisonment  of 
British  naval,  in  Brazil,  38;  Admiral 
Kimberly  sent  to  protect  American 
interests  in  Samoa,  45;  naval,  do  not 
possess  representative  character,  45; 
German,  temporarily  protect  French- 
men in  Venezuela,  107-08;  French 
naval  commander  demands  release  of 
nationals,  108;  Captain  Hollins  with- 
out specific  instructions  destroyed 
Greytown  as  redress  for  insult  to  U 
representative,  120;  Captain  Haddock 
dismissed,  disavowed  by  U.S.,  154; 
necessity  of,  to  act  sometimes  without 
instructions,  167;  British  naval  cort- 


INDEX  483 

mander  takes  possession  of  Falklands, 
212;  France  claims  delivery  of  Savarkar 
without  authority,  418;  ignorance  of 
French  official  as  to  Savarkar's  iden- 
tity urged  as  ground  for  nullity  of  sur- 
render, 421;  warships  sent  to  aid,  at 
Messina,  447. 

Official:  Italian,  punished  for  violation 
of  consular  archives,  38;  not  responsi- 
ble for  acts  of  government,  before 
courts  of  another  state,  156. 

Official  act:  of  consul,  local  authorities 
incompetent  in  case  of,  274;  Consul 
Tortin's  letter  to  the  Times  considered, 
by  French  tribunal,  29. 

Olney,  US.  Secretary  of  State:  report  of, 
on  American  citizens  in  Turkey,  124. 

Olof  Wyk :  see  Tcherniak  affair,  392-93. 

Oman:  see  Muscat. 

"On  leave":  Italian  Minister  withdraws 
from  Washington  "on  leave"  (New 
Orleans  lynching),  267. 

Opinion:  law  should  be  in  harmony  with. 
154;  common,  consent  may  be  tested 
by,  growing  out  of  usage,  232. 

Orinoco  Steamship  Company,  case  of: 
80-06. 

Overloading:  of  vessels  (see  Merchant 
Shipping  Act),  439  ff. 

Overthrow  of  Balmaceda,  the:  243-46. 

Oyer  and  Terminer:  a  court  empowered 
by  the  Crown  "to  hear  and  deter- 
mine" criminal  cases. 

Pacific  blockade:  effects  of,  differ  from 
war  blockade,  383.  (See  Blockade  of 
Zanzibar,  430.) 

Pacific  Ocean:  restrictions  on  sealing  in 
northern,  224. 

Pact  of  Indefinite  Truce:  between  Chfle 
and  Bolivia  (1884),  327. 

Pafta  servenda  swU:  treaties  ought  to  be 
observed. 

Panama:  treaty  of,  with  U.S.  dates  from 
exchange  of  ratification,  127;  rights  of 
Canal  Zone  squatters,  174. 

Paris:  International  Commission  of  In- 
quiry at,  on  Dogger  Bank  incident, 
loa;  Congress  of  (1856),  134;  Treaty 
of  (1763),  French  fishing  rights  under, 
178. 

Palmereton,  Lord,  British  Foreign  Sett*- 
tary:  opinion  of.  on  dismissal  of  Sir 
Henry  Bulwer  from  Madrid  (1848), 
12;  does  not  present  claims  for  bom- 
bardment of  Greytown,  iar,  justifies 
destruction  of  the  Carolim  on  ground 
of  self-defense,  taa;  on  occupation  of 
the  Falkland  Island*,  aia,  aij.  ais. 


484 


INDEX 


Paquete  Habana :  xxxii. 

Paquet's  case:  290-91. 

Parliament:  act  of,  declaratory  of  law  of 
nations,  xxxii;  cannot  make  rules  for 
foreign  vessels  on  high  seas,  433. 

Passport:  see  Safe-conduct. 

Passports:  Russian  Ambassador  receives 
his,  3;  return  of,  to  Papal  Nuncio,  17; 
application  for,  by  diplomatic  repre- 
sentative, 109;  refusal  of,  to  Under- 
bill to  leave  Venezuela,  156. 

Paul,  Dr.  Jos6  de  J.:  delivers  award  of 
American-Venezuelan  Claims  Com- 
mission (1903),  259-61. 

Payments  on  awards,  suspension  of:  77. 

Peace,  international  law  of:  neutrality 
cases  not  selected  as  examples,  x. 

Peace  protocol:  signed  by  China  and  the 
powers,  117. 

Peaceful  Settlement  of  International 
Differences,  Convention  for:  54. 

Pelagic  sealing:  U.S.  claims  extermina- 
tion of  seals  on  high  seas  is  contra 
bonos  mores,  220. 

Pelew  Islands:  see  Caroline  Islands,  49- 

5°. 

Pelletier  claim:  82-89. 

Peltier,  case  of:  cited,  429. 

Permanent  Court  of  Arbitration  at  The 
Hague  (see  also  The  Hague):  estab- 
lished 1899,  54- 

Pernoctation:  rule  of,  sometimes  applied 
to  recaptures,  395. 

Perpetual  allegiance  and  expatriation: 
320-25. 

Persia:  Minister  of  U.S.  protects  Jews 
in,  445. 

Person:  meaning  of  term,  in  treaty  with 
Italy,  410. 

Person  and  property  of  nationals  on  the 
high  seas,  and  elsewhere  outside  the 
frontiers  of  any  state,  protection  of: 
368-72. 

Persona  non  grata:  sufficient  reason  for 
dismissal  of  diplomatic  representative, 
14. 

Peru:  wrongful  arrest  of  U.S.  Consul  in, 
22;  arbitration  of  Canevaro  claim 
against,  316-20;  Bolivian  customs  col- 
lected at  port  of,  327;  war  between 
Chile  and,  327. 

Peruvian  Commissioner:  opinion  of,  on 
Consul  Weile's  claim,  22. 

Peter  the  Great:  receives  apology  from 
English  Ambassador,  6;  content  with 
satisfaction  offered  by  Great  Brit- 
ain, 7. 

Peter  the  Great's  Ambassador,  case  of: 
3-7 


Physical  limits  within  which  a  state  is 
recognized  as  sovereign  and  responsi- 
ble for  the  enforcement  of  international 
law:  218-25. 

Pierce,  President:  on  settlement  of  case 
of  Sould,  10;  declines  to  deliver  Koszta 
to  Austria,  311. 

Pious  Fund  of  the  Calif ornias,  case  of: 
64-69. 

Piracy:  master  and  crew  of  the  William 
tried  for,  83;  by  law  of  nations  dis- 
tinguished from,  by  municipal  statute, 
86;  slave  trade  defined  as,  87;  Justice 
Strong  makes  erroneous  award  be- 
cause Pelletier  had  not  committed, 
under  international  law,  87;  charge  of, 
against  the  Virginius,  369,  370; 
presence  of  animus  furandi  in,  370; 
trial  of  privateers  for,  424-25. 

Placuitne  gentibus? :  Has  it  met  with  in- 
ternational approval  ? 

Plimsoll:  amendments  proposed  by,  re 
Merchant  Shipping  Act,  441-42. 

Police  action  by  collective  intervention: 

43°- 
Police,    international:    U.S.    willing    to 

cooperate  with  Germany  and  Great 

Britain   to   restore   order   in   Samoa, 

45-46. 
Police  regulations:   international   rivers 

subject  only  to,  451. 
Policy:  difference  between,  and  law,  153; 

inconvenience  of  confusing,  with  law, 

154;  of  U.S.  in  regard  to  recognition 

of  existing  governments,  167. 
Political  differences:  settlement  of,  based 

on  compromise  and  mediation,  48. 
Political  offenders:  special  treatment  of, 

in  prison,  287. 

Political  offense:  defined,  412. 
Political  police:  modification  of  Swiss, 

142. 
Political  refugees:  General  Butler  asks 

to  search  warships  for  criminals  other 

than  rebels,  242;  Austria  presses  for 

extradition    of    Hungarian,    298    ff.; 

Seward  distinguishes  case  of  Koszta 

from    that    of    Myers    and   Tunstall, 

411-12. 
Politics,  necessity  to  distinguish  between, 

and  law:  xxx. 
Polk,  President:  approves  recognition  of 

French  Republic  by  Mr.  Rush,  167; 

states  policy  of  U.S.  with  respect  to 

other  countries,  167. 
Pope  Leo  XIII:  see  Caroline  Islands, 

40-50. 

Pork,  export  of  American:  292-95. 
Port  Arthur:  lease  of,  to  Russia  (1898), 


INDEX  485 


205;  transfer  of  lease  of,  to  Japan 
(1905),  207;  extension  of  lease  of,  ob- 
tained by  Japan,  208. 
Portugal:  fishing  vessel  of,  released  by 
French  prize  court,  xxxii;  Queen  of, 
not  cited  before  British  tribunal,  46; 
party  to  Delagoa  Bay  Railway  Arbitra- 
tion, 334-49;  treaty  between  Trans- 
vaal and,  334;  grants  tramway  con- 
cession to  Transvaal,  336;  cancels 
railway  concession,  339;  protests  of 
Great  Britain  and  U.S.  against  action 
°f>  339~4°»  agrees  to  arbitration,  341; 
award  against,  348-49;  Queen  of, 
authorizes  Englishman  to  seize  Eng- 
lish vessels  for  violation  of  blockade, 
391;  law  of  recapture  as  applied  by, 
394-401;  takes  part  in  blockade  of 
Zanzibar  for  suppression  of  slave 
trade,  430. 

Possession:    British    naval    commander 
takes,  of  Falklands,  212;  immediate, 
property  might  vest  upon,  395. 
Postal    communications:    see    Universal 

Postal  Union,  451  ff. 
Powers:  extraordinary  and  plenipoten- 
tiary, given   English  Ambassador  to 
make  apology,  6. 
Powers,     intervention     of,     in     China: 

112-19. 

Practice:  law  of  nations  to  be  collected 
from,  xxxii;  international  law  observed 
by  governments  in,  151. 
Precedent:  value  of  a  case  as,  changes 
with  advance  in  science,  x;  value 
of,  to  furnish  rule  of  conduct,  xxvii; 
refusal  by  Turkey  to  extradite  political 
refugees,  cited  by  Marcy,  302;  Ger- 
many's, cited  against  her  action  at 
Casablanca,  380;  of  France  in  with- 
drawing objectionable  legislation,  cited 
to  Mexico,  389. 

Preponderating  power:  effect  of,  ir 
formation  of  new  rules  of  international 
law,  154, 

Prescription:    as    bar    to    international 
claims,  55-57;  Argentina  appeals  to 
(Falkland  Islands),  217. 
Pribiloff  Islands:  set  aside  as  reservation 

for  seals,  219. 

Priest,  Consul,  case  of:  18-^19. 
Prima  facie  evidence:  claim  to  arbitra- 
tion submitted  on,  87. 
Pritchard  affair:  22-26. 
Private  international   law:  see  Foreign 

judgments;  Nationality. 

Private  law:  rule  of,  in  regard  to  pavflMO 

of  interest  applied  by  arbitral  tribunal 

63- 


'rivateers:  Jenkins    condemns    Scotch, 

424. 

*rize  courts:  take  judicial  notice  of  usage, 
in  absence  of  treaties  and  other  public 
acts,  xxxv. 

rocedure:  methods  of,  for  the  settle- 
ment of  international  differences,  47- 
126;  arbitral,  arbitration  and  the  pres- 
entation of  claims,  54-58;  arbitral, 
governed  by  the  compromis,  54;  of 
Dogger  Bank  Commission  of  Inquiry 
embodied  in  Hague  Convention  of 
1007,  102;  of  U.S.  in  cases  of  deporta- 
tion of  immigrants,  275;  discussion  of 
reasonable  measures  to  effect  expul- 
sion, 286;  issuance  of  transit  certifi- 
cates, 206;  of  French  and  Italian  au- 
thorities to  punish  expatriation,  326; 
arbitral  tribunal  empowered  to  fix  its 
own,  341. 

Property:  private,  seizure  of  Brazilian, 
by  British  by  way  of  reprisal,  40;  right 
of,  arbitrators  (Behring)  decide  tf.S. 
has  no,  in  seals,  224;  private,  immunity 
of,  of  sovereign  not  same  as  for  public 
property,  240;  public,  of  Bolivia 
passes  to  Chile  on  conquest,  318: 
captured,  rules  of  evidence  in  regard 
to  restoration  of,  discordant,  395; 
captured,  vesting  of,  suggested  rules 
to  govern,  395;  seized  before  the  out- 
break of  war,  rule  of  reciprocity  ap- 
plied to,  398. 
Property  and  person  of  nationals  on  the 
high  seas,  and  elsewhere  outside  the 
frontiers  of  any  state,  protection  of: 
368-73. 
"Proposition":  of  Leo  XIII  in  Caroline 

Islands  dispute,  49. 

Protection:  of  Venezuelan  citizens  in 
France  through  good  offices  of  U.S., 
51;  of  British  trawlers  on  the  high 
seas,  99;  German  officers  look  after, 
of  Frenchmen,  107-08;  jurisdiction 
and,  distinguished,  in  case  of  property 
on  high  seas,  221;  of  Ceylon  pearl 
fisheries  on  high  seas,  222;  of  nationals: 
U.S.  Consul  at  La  Guaira  obtains  re- 
lease of  Tortry.  260;  of  nationals: 
Italian  Consul  asks  governor  to  send 
troops  to  protect  prisoners  (New  Or- 
leans lynching),  265:  of  nationals:  ex- 
ample of  verbal  informal  friendly 
negotiation  for  ( Council's  case),  >7O/.; 
U .5.  representatives  secure  remission 
of  taxes,  274;  French  representatives 
interpose  in  case  of  deportation.  276  ff\ 
U.S.  protests  against  d^lOrtaHon  of 
criminals  to  America,  281;  U.S.  rep- 


486 


INDEX 


resentative  interposes  to  secure  re- 
lease of  Koszta,  300;  Marcy  maintains 
right  to,  conferred  by  domicile,  307; 
French,  granted  to  Omanis  instead  of 
citizenship,  354;  right  to  the  exercise 
of,  in  extraterritorial  countries  (Casa- 
blanca case),  385;  individuals  cannot 
claim,  for  acts  contrary  to  law  of 
nations,  431. 

Protection  and  nationality:  of  corpora- 
tions, 325-50;  of  vessels,  350-68. 

Protection,  basis  of:  298-3 n. 

Protection  of  property  and  person  of 
nationals  on  the  high  seas,  and  else- 
where outside  the  frontiers  of  any 
state:  368-72. 

Protection  of  the  life  and  liberty  of 
nationals  of  other  states:  430-45. 

Protection  of  sovereign  interests:  425-29. 

Protective  tariff:  French  official  admits 
trichinae  regulations  are  for,  292. 

Prot6ges:  status  of,  in  Turkey,  308; 
status  of  French,  in  Muscat  defined 
by  arbitral  tribunal,  358-59. 

Protest:  Pritchard  hauls  down  his  con- 
sular flag  as,  23  «.;  of  French  Consul 
at  San  Francisco  against  summons, 
31;  of  French  Government  against 
violation  of  consulate  at  Florence,  36; 
of  consular  corps  at  Florence  against 
violation  of  French  Consulate,  com- 
municated to  their  governments 
through  diplomatic  representatives  at 
Rome,  36;  Brazil  pays  claim  under, 
40;  by  U.S.  against  subjugation  of 
Samoa  by  Germany,  46;  of  Venezuela 
against  awards  of  Mixed  Commission 
of  1866,  69;  against  award  of  King  of 
Netherlands,  82;  by  Hayti  against 
execution  of  award,  83;  of  U.S.  against 
award  of  Dr.  Barge,  92;  customary  to 
lodge,  against  violation  of  rights,  106; 
of  Venezuelan  commander  against 
threat  of  force  by  French  warship, 
108;  of  U.S.  to  Great  Britain  against 
seizure  of  Washington  and  Argus,  183; 
vigorous,  of  U.S.  consuls  at  release  of 
slaves  from  U.S.  vessels,  248. 

Protests  and  apologies:  106-07. 

Protocol:  provision  by,  for  renewal  of 
relations  between  England  and  Russia, 
7;  departure  of  arbitrator  from  powers 
under,  82;  mistake  of  arbitrator  as  to 
powers  under,  82-89,  96;  departure 
from  terms  of,  ground  for  annulment 
of  award,  95. 

Provisional  Government:  U.S.  Minister 
Rush  recognizes  the  French,  without 
instructions,  166. 


Prussia:  agent  of  commerce  of,  in  Great 
Britain,  not  conceded  diplomatic  im- 
munities, 19;  party  to  Treaty  of  Paris 
(1856),  134. 

Public  charge:  U.S.  orders  deportation 
of  Roussel  on  account  of,  276. 

Public  opinion:  dangerously  stirred  by 
Pritchard  affair,  25;  English,  inflamed 
by  Dogger  Bank  incident,  99;  in  Italy 
compels  government  to  stiffen  atti- 
tude (New  Orleans  lynching),  266. 

Public  policy:  application  of  doctrine  of 
res  judicata  a  matter  of,  438. 

Public  vessels:  Erie  refuses  to  answer 
summons  of  local  court,  43;  immunity 
of,  from  national  jurisdiction  in  foreign 
ports,  230  jf. 

Punishment  of  aliens:  conditions  which 
international  law  imposes  re,  387. 

Queen  Anne:  see  Anne. 

Queen  of  France:  Lord  George  Gordon 

convicted  for  libel  on,  429. 
Queen  of  Portugal:  see  Portugal. 

Ratification:  by  government  of  acts  of 
individual,  122-23;  of  treaties,  126-27. 

Re :  in  relation  to. 

Readmission:  French  Ambassador  urges 
right  of,  to  U.S.,  277;  of  resident 
aliens:  U.S.  considers  same  conditions 
apply  to,  as  in  case  of  immigrants, 
279-80. 

Reason:  value  of,  to  discover  rule  of 
conduct,  xxviii;  for  expulsion  should 
be  given  other  government,  if  re- 
quested, 291. 

Reasonable  regulation:  what  is,  188  jf. 

Recapture:  no  rule  as  to,  300. 

Reciprocity:  Chilean  Minister  considers 
has  right  to  look  for,  in  withdrawal  of 
exequatur,  31;  Russia  agrees  to  exer- 
cise of  French  police  jurisdiction  over 
legation  under  reserve  of,  229  n.;  U.S. 
willing  to  enter  into  agreement  for, 
293;  as  a  basis  of  treatment  between 
governments,  394-40  r;  obligation  to 
observe  international  law  arises  from, 
of  practice,  395;  Germany  refuses 
repatriation,  citing  American  prece- 
dent, 403;  Bulgaria  grants  extradition 
without  promise  of,  405;  rule  of,  ap- 
plied by  courts  to  execution  of  foreign 
judgments,  436  ff. 

Recognition:  164-68;  of  Crespo  Govern- 
ment as  legitimate  (Venezuela)  by 
U.S.,  156;  of  revolutionary  govern- 
ments takes  effect  from  beginning  of 
its  existence,  157;  of  existing  govern- 


ments,  policy  of  U.S.  in  regard  to, 
167. 

Red  Cross:  American  National,  issues 
appeal  for  Italian  earthquake  sufferers, 
446. 

Redress:  for  insult  to  ambassador,  6; 
British  demands  for,  upon  Brazil,  40; 
for  grievances,  157;  to  be  sought  by 
retaliation,  396. 

Refuge  (see  also  Asylum):  vessels  hi  dis- 
tress have  a  right  to,  hi  foreign  ports, 
236. 

Refugees:  Germany  contends  German 
Socialists  should  not  enjoy  asylum  hi 
Switzerland,  149. 

Regina  r.  Lesley:  300. 

Registry:  flag  of  vessel  usually  deter- 
mined by,  368-71;  fraudulent,  hi  case 
of  the  Virginius,  369. 

Regulation:  right  to  make,  re  fisheries, 
183  ff.;  authority  of  the  Behring  Sea 
arbitrators  to  make  necessary,  220; 
arbitrators  determine,  for  pelagic 
sealing,  224-25;  of  immigration  and 
sojourn,  275-84;  of  tariff  and  imports, 
291-95;  right  of,  inherent  in  sover- 
eignty* 344>  navigable  international 
rivers  subject  only  to  police,  451;  of 
foreign  vessels  ought  to  be  tolerated 
when  in  interest  of  humanity,  442. 

Relativity:  of  rights  of  extraterritoriality 
and  military  occupation,  380-81;  of 
right  of  inviolability  of  public  minister 
and  self-defense,  381. 

Release:  President  authorized  to  use  re- 
prisals to  secure,  of  Americans,  322. 

Renault,  Professor:  arbitrator  hi  case  of 
Perpetual  Leases  in  Japan,  130;  ar- 
bitrator in  the  Canevaro  claim,  317; 
arbitrator  in  Casablanca  incident,  379; 
arbitrator  in  Savarkar  case,  418. 

Reparation:  demand  of  U.S.  for,  hi  case 
of  the  Virginius,  369. 

Repatriation:  Germany  refuses  to  un- 
dertake, 403. 

Representations:  urgent,  addressed  to 
Russian  Government  re  Dogger  Bank 
incident,  99;  made  to  British  Minister 
because  of  Caroline  incident,  122. 

Representatives  (see  also  Diplomatic 
representatives):  naval  officers  do  not 
poaem  character  of,  45;  diplomatic, 
withdrawal  of,  108-12. 

Reprisals  (see  also  Retaliation;  Retor- 
sion): 107. 

Reprisals:  Prit chard  seized  hi,  24;  seizure 
of  Brazilian  private  property  by 
British  by  way  of,  40;  proposal  in 
Congress  to  authorize  President  to 


INDEX  487 


use,  if  Venezuela  refused  payment  of 
claims,  69  ff.;  responsibility  of  local 
government  for  loss  resulting  from 
(Grey  town),  120-21;  Congress  au- 
thorizes President  to  have  recourse  to, 
to  secure  release  of  Americans,  322; 
state  of,  between  America  and  France 
(1798)  called  "state  of  hostility,"  398. 

Republican  government:  enthusiasm  in 
U.S.  at  setting  up  of,  in  France,  167. 

Res  judicata:  an  issue  or  point  of  law  that 
has  been  previously  decided  by  a  court 
of  authoritative  or  competent  juris- 
diction, and  which  when  pleaded  is 
conclusive  of  the  matter  in  contro- 
versy by  way  of  estoppel.  (Standard.) 

Res  judicata:  64;  rule  of,  applied  to  in- 
ternational claims,  55;  pleaded  by 
Turkey  as  exception,  61;  not  admitted 
by  tribunal  in  Russia  v.  Turkey,  63; 
principle  of,  considered  in  Pious  Fund 
case,  64-69;  held  applicable  to  the 
award  of  Sir  Edward  Thornton,  68; 
not  applied  to  mode  of  payment  of 
award,  68;  see  case  of  Orinoco  Steam- 
ship Co.,  93  ff.;  claim  in  McLeod's 
case  considered,  123;  Chief  Justice 
Fuller  thinks,  should  be  rule  for  exe- 
cution of  foreign  judgments,  438. 

Res  nullius:  Great  Britain  contends  seals 
are,  223. 

Rescission:  right  of,  inherent  hi  sover- 
eignty, 343- 

Rescript:  of  Nicholas  II  suggesting  peace 
conference,  52. 

Resident  aliens  (see  also  Domicile): 
obligation  of,  to  perform  military  serv- 
ice, 271  ff.;  French  Ambassador 
claims  right  of,  to  readmission  to  U.S., 
277. 

Respect:  damages  awarded  to  indicate, 
due  office  of  consul,  22;  due  to  friendly 
power,  23  ».;  for  decision  of  French 
tribunal  against  U.S.  warship  shown 
by  U.S.  Government,  44;  Ingraham's 
use  of  force,  not  lacking  in,  for  Austria, 
310;  Peltier  convicted  for  libel  of 
Napoleon,  429. 

Respect  for  the  state:  163. 

Responsibility:  of  states,  for  non-ful- 
fillment of  obligations,  Russia  v. 
Turkey,  58-64;  of  Great  Britain,  for 
McLeod's  act  (Caroline),  123;  officials 
free  from,  for  acts  of  government, 
before  courts  of  another  state,  156; 
U.S.  not  under,  for  death  resulting 
from  shot  fired  at  escaping  prisoner 
(Cadenhead),  263-64;  President  ad- 
mits, of  U.S.  when  local  authority 


INDEX 


fails  to  punish  violation  of  treaty 
(New  Orleans  lynching),  270. 

Retaliation:  German  threats  of,  because 
of  expulsion  of  Wohlgemuth,  139; 
U.S.  contemplates  suspending  Cana- 
dian bonding  privileges  as,  for  fish- 
eries seizures,  184;  Newfoundland 
regulation  as,  for  failure  to  ratify 
treaty,  186;  Act  of  1887  passed  by 
U.S.  as,  1 86;  U.S.  Secretary  of  Agri- 
culture proposes  retorsion  against 
Germany,  294;  redress  to  be  sought 
by,  396;  judicial,  by  applying  rule  of 
reciprocity  to  execution  of  foreign 
judgment,  437;  regulation  of  foreign 
vessels,  likely  to  lead  to,  440;  exorbi- 
tant transit  charges  for  mail  would 
lead  to,  452. 

Retorsion  (see  also  Reprisals):  retalia- 
tion in  kind,  as  a  measure  short  of 
war;  more  correctly  reserved  for  re- 
taliatory action  legal  in  form,  in  dis- 
tinction from  reprisals  which  pur- 
posely disregard  legal  rights;  legisla- 
tive, 107;  German  threats  of,  by  en- 
forcing inconvenient  border  inspec- 
tions, 139;  legislative,  proposed  against 
German  wines,  294;  not  for  courts  to 
apply,  439- 

Revision  of  arbitral  awards:  64-98;  chief 
reasons  for,  93,  94. 

Revolution:  recognition  of  belligerency 
not  necessary  to  judicially  establish 
fact  of  existence  of,  157. 

Revolutionary  government,  payment  of 
customs  to,  108. 

Revolutionists:  anarchists  and,  not  al- 
lowed to  settle  in  Switzerland,  148. 

Rhine:  navigation  of,  regulated  by 
treaties,  450-51. 

Rhodian  Law:  434. 

Ribot,  French  Minister  for  Foreign 
Affairs:  statement  of,  on  litres  de 
navigation,  352. 

Right:  difference  between,  and  "liberty" 
in  regard  to  fisheries,  78;  international, 
implies  means  necessary  to  enforce, 
285. 

Rights,  property,  of  individuals:  174-76. 

Rights  of  aliens:  259-74;  no  greater  than 
those  of  nationals,  263. 

Ripperda,  Duke  of,  case  of:  16-17. 

Ritchie  v.  McMullen:  foreign  judgment 
in  case  of,  sustained,  438  n. 

Rivers  (see  also  International  rivers): 
international  commissions  for  the 
regulation  of,  450-51. 

Robson,  Lord:  commissioner  in  Alsop 
claim,  329. 


Rogatory  letters:  422-23. 

Rogers,  Consul,  case  of:  30-31. 

Roman  Law:  necessity  to  comprehend, 
x;  theory  of  responsibilities  analyzed, 
61;  origin  of  doctrine  of  international 
servitudes  in,  190;  Great  Britain  con- 
tends that  seals  are  ferce  natures  and 
res  nullius,  222-23;  provisions  of,  re- 
garding the  navigation  of  rivers,  297. 

Roosevelt,  President:  message  of  sym- 
pathy from,  to  King  of  Italy,  446. 

Root,  Elihu,  U.S.  Secretary  of  State :  ad- 
dresses note  to  Chinese  Minister  at 
Washington  cancelling  Chinese  in- 
demnity, 118;  signs  special  agreement 
submitting  North  Atlantic  Fisheries 
dispute  to  arbitration  (1909),  177; 
counsel  in  North  Atlantic  Fisheries 
case,  187;  states  question  at  issue,  189; 
argument  of,  on  servitudes,  190. 

Roumania:  property  of  Zappa  in,  claimed 
by  Greece,  155;  refusal  of,  to  allow 
transit  of  extradited  person,  407-08. 

Roussel,  case  of:  276-80. 

Rowe,  Professor  L.  S.:  member  of  U.S.- 
Panama Joint  Commission  (1913), 
174. 

Rozhdestvensky,  Admiral  (see  also  Dog- 
ger Bank  incident) :  98-106. 

Rudini,  Italian  Minister  of  Foreign 
Affairs :  demands  of,  re  New  Orleans 
lynching,  265-67;  affirms  right  to  have 
treaty  enforced,  269. 

Rules  and  procedure :%  Hague  Tribunal 
(Fisheries)  authorized  to  make,  for 
fisheries  commissions,  187. 

Rush,  U.S.  Minister  at  Paris :  recognizes 
French  Republic  (1848),  166;  opinion 
of,  as  to  American  fishing  rights  under 
Convention  of  1818,  198. 

Russell,  Lord,  British  Foreign  Secretary: 
instructions  of,  to  British  Minister  at 
Rio  de  Janeiro  in  case  of  the  Forte, 
40;  leaves  question  of  reprisals  to  dis- 
cretion of  Admiral  Warren,  40. 

Russia:  demands  reparation  from  Eng- 
land for  arrest  of  ambassador  (1708), 
9;  rescript  of  Nicholas  II  on  holding 
of  peace  conference,  52;  claim  of, 
against  Turkey  for  moratory  interest, 
58;  Dogger  Bank  incident,  98;  party 
to  Treaty  of  Paris  (1856),  134;  Black 
Sea  closed  to  vessels  of  war  of,  Treaty 
of  Paris  (1856),  134;  regards  Treaty 
of  Paris  no  longer  binding  on,  134; 
warns  Switzerland  against  danger  to 
Swiss  neutrality,  139;  collective  note 
of  Germany,  France,  and,  to  Japan, 
203;  lease  of  Port  Arthur  and  Talien 


INDEX 


489 


to,  205-06;  transfers  lease  of  Port 
Arthur  to  Japan  (Treaty  of  Ports- 
mouth), 207;  sells  Alaska  to  U.S.,  218; 
ukase  of,  re  Behring  Sea  (1821),  218; 
treaty  with  U.S.  (1824),  218;  with 
Great  Britain  (1825),  218;  never  as- 
serted exclusive  jurisdiction  in  Behring 
Sea,  224;  extent  of  diplomatic  im- 
munity of  embassy  at  Paris,  228. 

Russia  v.  Turkey,  58-64. 

Russian  language:  apology  read  by  Eng- 
lish Ambassador,  translated  into,  6. 

Sackville  West  incident:  10-16. 

Safe-conduct:  American  representative 
asks,  of  Venezuela,  ioo-|-io;  refused  as 
unnecessary,  in;  crossing  of  frontier 
by  officials  on  basis  of  understanding 
constitutes,  227;  action  of  U.S.  Min- 
ister conducting  political  refugees  to 
warship,  criticized,  246;  consul  fur- 
nishes Koszta  with  tezkereh,  299. 

Sailors:  see  Crew. 

Salisbury,  Lord,  British  Secretary  for 
Foreign  Affairs:  unable  to  assent  to 
view  laid  down  by  U.S.  Government, 
in  case  of  Lord  Sackville,  12;  instruc- 
tions of,  on  lease  of  Wei-hai-wei,  206; 
diplomatic  intervention  of,  in  Delagoa 
Bay  Railway  case,  339. 

Sally,  the  case  of  the:  246-48. 

Salute:  to  French  flag  at  San  Francisco, 
by  U.S.  authorities,  33;  promise  of 
Spain  to  U.S.  to  give,  369;  not  re- 
quired of  Spain,  369. 

Salvage:  English  rule  for  restoration  of 
recaptures,  398. 

Samoa,  restoration  of  order  in:  45-46; 
extraterritorial  jurisdiction  in,  383. 

San  logo:  Sir  William  Scott  cites  case  of, 
398. 

Santa  Cruz,  case  of  the:  394-401. 

Sapphire,  case  of  the:  168-70. 

Sardinia:  party  to  Treaty  of  Paris 
(1856),  134. 

Satisfaction:  protocol  relative  to,  by 
China  for  Boxer  outrages,  113  ff.; 
U.S.  refuses  Austria's  request  for,  in 
Koszta  incident,  311. 

Savarkar  case:  416-22. 

Savorin  Lohman,  Jonkheer  A.  F.  de: 
arbitrator  in  Pious  Fund  case,  66; 
arbitrator  in  North  Atlantic  Fisheries 
case,  187;  arbitrator  in  case  of  Dhows 
of  Muscat,  353;  arbitrator  in  Savarkar 

/  case,  418. 

Scheldt:  navigation  of,  regulated  by 
treaty,  451. 

Schnaebcll  incident,  the:  225-28. 


Schooner  Exchange,  the:  230-42. 

Scotia,  case  of  the:  432-35. 

Scott,  Sir  William  (Lord  Stowell) :  bases 
exemption  of  fishing  vessels  from  cap- 
ture on  comity,  xxxiii;  judgment  of, 
in  Santa  Cruz  case,  394-401. 

Seals:  U.S.  has  no  property  right  in,  224. 

Seamen  (see  also  Crew) :  impressment  of, 
368;  relief  of  destitute  American,  by 
consuls,  402. 

Search:  General  Butler  claims  right  to 
search  Spanish  warships,  242. 

Secretary  of  Agriculture  (U.S.):  pro- 
poses retaliatory  regulations  against 
German  wines,  294. 

Secretary  of  Treasury  (U.S.):  decides 
upon  deportation  of  immigrant,  275. 

Self-defense  (see  also  Self-help):  bellig- 
erent and  limited  nature  of,  223;  right 
of,  on  high  seas,  370;  right  of,  not  ar- 
rested by  absolute  inviolability  of 
public  ministers,  381;  U.S.  seizes  Con- 
federates in  Morocco,  411-12. 

Self-help:  121-26. 

Separation  of  powers:  in  Winslow  case 
executive  refuses  to  pledge  action  of 
judiciary,  416  n. 

Servia:  transit  of  person  extradited  al- 
lowed by,  408. 

Servitudes:  China  agrees  to  raze  Taku 
forts,  114;  nature  of  international, 
190. 

Servitudes  and  leases:  177-208. 

Settlement:  German-Swiss  treaty  re- 
garding, 144  jf. 

Severability:  of  award,  principle  of, 
followed  in  Orinoco  Steamship  Co. 
case,  95. 

Seward,  U.S.  Secretary  of  State:  action 
of,  on  revocation  of  exequatur,  30; 
letter  of,  disavowing  arrest  of  American 
deserter  on  Canadian  territory,  154; 
on  right  of  asylum  on  warships,  242, 
243;  on  conflict  in  naturalization  laws, 
320;  on  right  of  asylum  in  Morocco, 
412. 

Sherman  Anti-Trust  Act:  159. 

Shipping:  legislative  retorsion  against, 
107. 

Ships'  papers:  issuance  of,  by  France  to 
Dhows  of  Muscat,  350-59. 

Silcsian  loan:  cited  in  Alsop  claim,  330- 
32. 

Slave  trade:  430-31;  denned  as  piracy, 
87;  Brussels  Act  in  suppression  of, 

351- 
Slavery:   Bates  holds,  not   contrary   to 

international  law  (Creole),  252. 
Slaves:   Great   Britain   claims,   become 


490 


INDEX 


free  on  entering  British  jurisdiction, 
249;  on  the  Creole  forcibly  liberated 
by  local  authorities,  251. 

Socialists:  Germany  thinks  German, 
should  not  enjoy  asylum  in  Switzer- 
land, 149. 

Sojourn:  diplomat  not  entitled  to,  in 
third  state,  9;  German-Swiss  treaty 
regarding,  144. 

Sojourn  and  immigration,  regulation 
of:  275-84. 

Sojourners:  Marcy  uses  term  of  those 
not  acquiring  national  character 
through  domicile,  308. 

Soldan:  arbitrator  in  Delagoa  Bay  Rail- 
way case,  341,  348. 

Sotomayor,  Duke  of:  opinion  of,  on 
recall  of  diplomatic  officers,  12. 

Soul6's  case:  9-10. 

Sources:  list  of  the  most  important,  for 
students,  xv;  Marshall  on  method  of 
finding  the  law,  231. 

Sovereigns:  46;  right  of  foreign,  to  sue 
in  courts  of  U.S.,  169;  foreign,  im- 
munity of,  from  suit,  45,  169;  act  as 
agents  or  representatives  of  state, 
170;  territorial  jurisdiction  cannot  be 
extended  to,  232-33;  enter  foreign  ter- 
ritory under  implied  promise  of  extra- 
territoriality, 233 ;  immunity  of  private 
property  of,  not  same  as  for  public 
property,  240;  determining  right  to  fly 
flag,  357;  rights  of,  may  be  limited  by 
treaties,  357;  suit  brought  by  Austria 
in  British  court,  425;  conviction  of 
Peltier  for  libel  against  Napoleon,  429. 

Sovereign  interests:  protection  of,  425- 
29. 

Sovereignty:  153-64;  effective,  to  be 
guaranteed  by  Spanish  Government 
in  Caroline  Islands,  50;  Switzerland 
will  not  abandon  exercise  of  certain 
rights  of,  147,  154;  relaxation  of  rights 
of,  by  states  for  certain  ends,  232; 
Turkey  claims  seizure  of  Koszta  is 
violation  of,  303;  U.S.  denies  right  of 
Austria  to  protest  at  violation  of 
Turkish,  310;  seizure  of  Confederate 
agents  in  Tangier,  411-12;  France 
claims  seizure  of  Savarkar  was  viola- 
tion of,  418. 

Spain:  U.S.  Minister  to,  stopped  at 
Calais  by  French  Government,  9; 
dismisses  Sir  Henry  Bulwer,  British 
Minister  at  Madrid  (1848),  12;  gov- 
ernment of,  seizes  Duke  of  Ripperda 
at  British  Embassy  at  Madrid,  16; 
claim  of,  to  sovereignty  over  Caroline 
Islands,  49;  claims  of,  to  Falkland 


Islands,  213-16;  Treaty  of  San  Lorenzo 
between  Great  Britain  and  (1790),  214; 
warships  of,  seized  for  debt,  released, 
240;  asylum  on  warships  of,  refused 
by  U.S.  at  New  Orleans,  242;  policing 
of  legation  of,  at  Santiago,  244;  claim 
of,  to  exclusive  navigation  of  Missis- 
sippi, 296;  law  of  nationality  of,  315; 
seizure  of  the  Masonic  at  Manila,  361; 
execution  of  British  and  Americans 
by  Spanish  authorities,  in  Cuba,  369; 
agreement  with  U.S.  re  Virginius 
affair,  369;  not  required  to  salute 
American  flag,  369;  pays  indemnity 
to  U.S.  and  Great  Britain,  370;  justi- 
fication of,  for  seizure  of  the  Virginius, 
370-71;  summary  executions  by,  not 
justified,  370-71. 
Spanish  warships  at  New  Orleans,  242- 

43- 

Spaun,  Admiral:  chosen  fifth  member  of 
Commission  of  Inquiry,  Dogger  Bank 
incident,  102. 

Special  mission:  Sir  Edward  Thornton 
sent  on,  to  express  regret  to  Brazilian 
Government,  and  to  propose  renewal 
of  diplomatic  relations,  42. 

Standardization:  of    postal    conditions, 

453- 

State  Department:  archives  of,  show  ex- 
istence of  civil  war  in  Venezuela,  157. 

State  succession:  168-77;  to  private 
funds  (see  Pious  Fund),  64  ff.;  principles 
of,  in  Alsop  claim,  326-34. 

States:  responsible  for  delay  in  payment 
of  debts,  62;  debtor,  entitled  to  privi- 
lege of  demand  for  interest,  63;  new, 
164. 

States  of  Union:  suits  between,  do  not 
relate  to  international  law,  vii. 

Status,  personal:  absence  of,  in  case  of 
Arab  traders,  353. 

Statute  of  7  Anne,  chap.  12:  declaratory 
of  law  of  nations,  7-8. 

Strait:  right  of  passage  through,  of 
Canso,  183-87. 

Strong,  William,  Justice:  arbitrator  on 
Pelletier  and  Lazare  claims,  82-96; 
letter  of,  on  "newly  discovered"  evi- 
dence after  award  on  Lazare  claim, 
97;  oral  statement  of,  on  Lazare  award, 
97;  judgment  of  in  case  of  the  Scotia, 

432-35- 

Study:  methods  of,  and  of  using  case- 
book, xi-xv. 

Substantial  justice:  when  held  to  be 
true  rule  of  law,  396. 

Substantive  law  of  nations:  151  ff. 

Succession:  of  revolted  colonies  to  terri- 


INDEX 


491 


tory  (Falklands),  208  ff.;  rights  of,  in 
aliens,  319;  effect  of,  upon  neutrality 
of  corporation  when  portion  of  shares 
in  hands  of  aliens,  326. 

Succession,  state:  168-77;  to  private 
funds  (see  Pious  Fund),  64  ff.;  principles 
of,  hi  Alsop  claim,  326-34. 

Succor:  446-49. 

Sucket,  case  of  the:  107-08. 

Sugiyama,  Chancellor  of  Japanese  Lega- 
tion: murdered  by  Chinese  soldiers  at 
Peking,  113. 

Sultan  of  Muscat:  see  Muscat. 

Summary  executions:  not  excusable  hi 
case  of  the  Virginius,  371. 

Superficies:  in  Roman  law,  a  perpetual 
lease  of  building  land  subject  to  the 
payment  of  an  annual  rent  (Sohm), 
132. 

Suspension  of  distribution  of  awards  by 
U.S.:  70. 

Sweden:  detention  of  merchant  vessel 
of,  at  Antwerp,  392,  393;  consul  of,  in- 
vestigates complaint,  392,  393;  exemp- 
tion of  Swedish  vessels  from  British 
provisions  relative  to  overloading,  445. 

Switzerland:  expels  German  official  Wohl- 
gemuth,  137;  action  of,  re  U.S. 
emigration  law,  401-02;  International 
Bureau  of  Postal  Union  established  at 
Beme,  453. 

Tahiti:  see  Pritchard  affair,  22-25. 
Talbot,  Lord  Chancellor:  opinion  of,  in 

Barbuit's  case  cited,  xxxii;  decision  of, 

in  Barbuit's  case,  18. 
Talien:  lease  of,  to  Russia  (1898),  205. 
Tariff   and   the   regulation  of   imports: 

29I-95- 

Taube,  Baron  von:  arbitrator  in  case  of 
Russia  v.  Turkey,  58. 

Taxation:  treatment  of  Americans  in 
Colombia,  in  regard  to,  162;  case  of 
Mrs.  Honey,  273;  foreign  representa- 
tives secure  remission  of  income  tax, 
274;  of  absentees  through  relatives, 

375  ff- 

Tcherniak  affair:  392-93. 

Termination:  of  consular  office  on  hauling 
down  consular  flag,  23  n.;  right  of,  of 
German-Swiss  treaty,  for  non-ob- 
servance, denied  by  Switzerland,  146. 

Termination  of  treaties:  134-49.  (See 
Charlton  case,  410-11.) 

Territory,  title  to:  208-17;  violation  of, 
U.S.  complains  of  (Caroline),  122. 

Testimony:  exemption  from  giving,  not 
extended  to  consuls  unless  by  treaty, 
32;  views  of  U.S.  in  regard  to  giving, 


by  consuls,  33;  taking  of,  by  consuls 
under  letters  rogatory,  422-23. 

The  Hague:  First  Peace  Conference  at, 
52-54;  Special  Arbitral  Tribunal  at, 
Russia  v.  Turkey  (1912),  58-64;  Per- 
manent Court  of  Arbitration  at,  case 
of  Pious  Fund  (1902),  64-69;  Orinoco 
Steamship  Co.  case  (1910),  89-96; 
Perpetual  Leases  in  Japan  (1905),  127- 
33;  North  Atlantic  Fisheries  Arbitra- 
tion (1910),  177-202;  Canevaro  claim 
(1912),  316-20;  Dhows  of  Muscat 
(1905),  350-59;  Casablanca  arbitra- 
tion (1909),  377-85;  Savarkar  case 
(1911),  416-22;  International  Bureau 
at,  apportionment  of  expenses  of,  454. 

Thiers:  declaration  of,  re  nationality  of 
French  residents  of  Alsace-Lorraine, 
172. 

Third  states  (see  also  Good  offices):  care 
of  the  interests  of,  107-08. 

Thompson,  Sir  John:  arbitrator  in  Fur 
Seal  case,  221. 

Thornton,  Sir  Edward:  expresses  to 
Brazil  regret  of  British  Government; 
proposes  renewal  of  diplomatic  rela- 
tions (1863),  42;  umpire  under  U.S.- 
Venezuela Mixed  Commission  of  1869, 
65;  decision  of,  in  Pious  Fund  claim, 
held  to  have  force  of  res  judicata,  68; 
awards  of,  in  Weil  and  La  Abra  claims, 
76;  calls  attention  to  clauses  in  Mer- 
chant Shipping  Act  re  foreign  shipping, 

443- 

Threats:  French  officer  makes,  to  hold 
British  Consul  responsible  for  blood- 
shed, 24;  Italy  threatens  recall  of 
diplomatic  representatives  from  U.S., 
266;  commander  of  St.  Louis  makes, 
of  recourse  to  force  if  Koszta  not  re- 
leased, 300. 

Threats  and  the  display  of  force:  107. 
(See  also  case  of  Leased  Territory  in 
China,  203  ff.) 

Tillett,  Ben,  case  of:  284-00 

Time,  lapse  of:  effect  of,  to  extinguish 
obligations,  57. 

Timor  arbitration:  reasons  why  omitted, 
vi  ». 

Title  to  territory:  208-17. 

Titres  de  navigation :  see  Ships'  papers. 

Torrey  case:  259-61. 

Tort-feasor:  one  who  has  committed  an 
act  giving  rise  to  a  civil,  not  a  criminal, 
action  at  law;  may  not  claim  com- 
pensation for  consequences  of  his 
tort,  88. 

Transeuntfs:  persons  in  transit. 

Transfer:  of  sovereignty  does  not  divest 


492 


INDEX 


property  rights  in  Canal  Zone  not 
recognized  by  American  jurisprudence, 
176;  of  property:  see  Property. 

Transit:  295-98;  right  of  minister  to,  o~ 
10;  through  Strait  of  Canso,  183; 
Roumania  refuses,  for  extradition  in 
absence  of  treaty,  408;  question  of, 
in  regard  to  prisoners  in  harbors,  418- 
19;  action  of  powers  at  Congress  of 
Vienna  in  regard  to  use  of  interna- 
tional rivers,  450;  of  mail  through 
United  States,  451. 

Transvaal:  treaty  between  Portugal 
and,  334;  delegation  from,  gets  tram- 
ways concession  from  Portugal,  336. 

Treason:  a  French  official  guilty  of, 
against  Germany,  226. 

Treaties  (see  also  Notes,  exchange  of): 
Indian,  not  international  law,  vii; 
correct  method  of  referring  to,  xii; 
based  upon  compromise,  xxvi;  general, 
danger  of,  xxvi  ».;  security  of,  basic 
principle  of  international  law,  xxx; 
of  U.S.  subject  to  limitations  of  Con- 
stitution, 32;  used  to  form  record 
of  diplomatic  agreement,  48;  Presi- 
dent to  ask  Congress  for  authority  to 
remit  Chinese  indemnity,  118-19; 
termination  of,  justified  by  change  in 
conditions,  134  ff.;  meaning  of  miissen, 
141;  necessarily  limit  exercise  of  sov- 
ereign rights,  141;  good-will  neces- 
sary to  fulfillment  of  certain,  142; 
German  Government  accuses  Switzer- 
land of  violating  a  treaty,  142;  void 
when  violated  by  one  party,  142; 
Germany  gives  Switzerland  notice  of 
intention  to  terminate  Treaty  of  1876, 
142;  meaning  of  auf  erfordern,  144; 
interpretation  of,  will  of  parties  at 
time  of  conclusion,  rule  of,  144;  mis- 
taken views  of  German  Government 
as  to  interpretation  of,  144;  history  of 
negotiations  as  aid  hi  interpretation 
of  will  of  the  parties,  145;  interpreta- 
tion of,  by  comparing  interpretation 
of  same  terms  by  other  governments, 
145;  interpretation  of,  indication  for, 
in  spirit  and  purpose  of,  146;  right  to 
terminate  German-Swiss  treaty  for 
non-observance  denied  by  Switzer- 
land, 146;  survival  of,  in  case  of  change 
of  sovereign,  170;  difference  of  opinion 
between  France  and  Germany  as  to 
interpretation  of  Treaty  of  Frankfort, 
173;  intention  of  negotiators  of  Treaty 
of  1818  regarding  "bays,"  199  ff.; 
Belgian  Consul  claims  jurisdiction 
over  crew  under  treaty  (Wildenhus), 


253;  interpretation  of  "tranquillity 
and  public  order"  in  Belgian  Treaty 
(Wildenhus),  254;  France  cites  to 
support  its  view  U.S.  treaties  with 
other  powers,  325;  Great  Britain- 
Muscat,  351;  most-favored-nation 
treaty  between  France  and  Muscat, 
351;  may  limit  rights  of  sovereign, 
357;  interpretation  of  Italian  (Charl- 
ton  case),  410;  absence  of  mutuality 
renders,  voidable,  410;  interpretation 
of  Webster-Ashburton,  in  regard  to 
extradition,  413-14. 

Treaties,  effect  of  war  on:  149. 

Treaties,  formation  of:  126-27. 

Treaties,  interpretation  and  application 
of:  127-34. 

Treaties,  termination  of:  134-49. 

Treaty:  of  1868,  between  U.S.  and  Mexico, 
mixed  commission  under,  65;  of  Paris 
(1856)  (see  Neutralization  of  the  Black 
Sea),  134;  of  peace  with  Spain  (1898), 
negotiations  in  regard  to  the  Cuban 
debt,  171;  of  Frankfort  (1870),  173; 
of  Utrecht  (1713),  French  fishing 
rights  under,  178;  of  1783,  difference 
of  opinion  in  regard  to  effects  of  War 
of  1812  upon,  179;  of  Shimonoseki 
(1895),  between  Japan  and  China, 
203;  of  Portsmouth  (1905),  between 
Russia  and  Japan,  207;  of  San  Lorenzo, 
between  Spain  and  Great  Britain 
(1790),  214;  Portugal-Transvaal 
(1875),  334;  Webster-Ashburton, 
(1842),  413-16. 

Treaty  obligations:  Italy  considers  U.S. 
remiss  in  enforcing  respect  for  (New 
Orleans  lynching),  269;  Harrison  rec- 
ommends legislation  making  violation 
of,  cognizable  in  federal  courts,  270. 

Tribunal,  corruption  of:  69. 

Tribunals,  national:  recourse  to,  open 
to  aliens,  109-10. 

Trichinae:  German  regulations  to  protect 
against  imports  infected  with,  292  ff. 

Triquet  v.  Bath:  xxxi. 

Truce,  Pact  of  Indefinite:  between 
Chile  and  Bolivia  (1884),  327. 

Turkey:  protection  of  Americans  in, 
44-45;  seizure  of  Koszta  at  Smyrna 
by  Austrian  authorities,  51;  claim  of 
Russia  against,  for  moratory  interest, 
58;  American  naval  officers  sent  to  aid 
missionaries  in,  124;  party  to  Treaty 
of  Paris  (1856),  134;  Black  Sea  closed 
to  vessels  of  war  of,  134;  refusal  of,  to 
extradite  Koszta  to  Austria,  298; 
status  of  protege's  in,  358;  imposition 
by,  of  personal  tax  on  naturalized 


INDEX 


493 


American  citizen  domiciled  in  U.S., 
375~77J  system  in,  of  bonding  absen- 
tees, 377. 

Turpitude:  refusal  to  press  claim  on 
ground  of,  88. 

Twenty-four  hours:  possession  for,  con- 
stituting valid  capture,  395. 

Ultimatum:     of     Germany    demanding 

evacuation  of  Kiao-chau,    203;  close 

vote  in   French  Cabinet  against,   to 

Germany  (1887),  225-26. 
Ultra    vires:    beyond    legal    powers,  or 

without  the  necessary  legal  consent; 

in  excess  of  authority. 
Ultra  vires:  refusal  to  accept  award  on 

ground  of,  82-88. 
Unanimity:    when    required    in    Postal 

Union,  453. 

Underbill  t>.  Hernandez:  156-59. 
Uniformity:  needs  of,  in  postal  relations, 

45 1 JP. 

Unions,  international:  451-54 

United  States:  embassy  of,  arrest  of 
Gallatin's  coachman  on  premises  of, 
7;  minister  of,  to  Spain,  stopped  at 
Calais  by  French  Government,  9; 
dismissed  Lord  Sackville  West,  10; 
consul  of,  refused  exequatur  by  Nica- 
ragua, 18;  consul  of,  arrested  in  Peru, 
22;  exequatur  of  Chilean  Consul  at 
New  York  revoked,  30;  French  Consul 
at  San  Francisco  brought  before  court 
of,  31;  naval  commander  of,  sum- 
moned before  French  tribunal,  43; 
naval  officers  of,  instructed  to  protect 
citizens  of,  in  Turkey,  44;  helps  to  re- 
store order  in  Samoa,  45;  protects 
Venezuelan  citizens  in  France,  51; 
demand  of  naval  commander  of,  for 
release  of  Koszta,  51;  accepts  invita- 
tion to  Peace  Conference,  52;  presents 
claim  of  John  H.  Williams  against 
Venezuela,  55;  claim  of,  against 
Mexico  in  Pious  Fund  case,  64;  cor- 
ruption of  tribunal  in  case  of  claims 
of,  against  Venezuela  (1866-90),  69; 
returns  money  paid  by  Mexico  on 
fraudulent  claims,  75;  northeastern 
boundary  of,  award  of  King  of  Nether- 
lands on,  81;  refuses  to  enforce  pay- 
ment of  I'elletier  award  against  Hayti, 
82;  party  to  case  of  Orinoco  Steam- 
ship Co.  against  Venezuela,  89;  re- 
fuses to  press  Lazare  claim  against 
Hayti,  96;  legislative  retorsion  by, 
against  British  vessels,  107;  with- 
drawal of  diplomatic  representatives 
of,  from  Venezuela,  iSo;  return  by, 


of  Chinese  indemnity,  117;  warship  of, 
bombards  Greytown,  119;  refuses  to 
admit  necessity  in  Caroline  affair,  122; 
accepts  British  contention  in  McLeod 
case,  123;  naval  officers  of,  sent  to  aid 
missionaries  in  Turkey,  124;  treaty 
of,  with  Panama  dates  from  exchange 
of  ratifications,  127;  abides  by  decision 
in  case  of  Perpetual  Leases  in  Japan, 
127;  disavows  arrest  of  American  de- 
serter in  Canada,  154;  courts  of,  do 
not  adjudicate  upon  acts  of  de  facto 
government  in  Venezuela,  156;  at- 
tempt of,  to  seize  Brazilian  coffee  in 
New  York,  159;  protest  of,  against 
discrimination  in  Colombia,  162;  abuse 
of  flag  of,  in  Greece,  163;  policy  of,  in 
recognition  of  new  states,  164;  rec- 
ognition of  French  Republic  by,  166; 
French  Emperor  brings  suit  in  courts 
of,  168;  declines  to  assume  Cuban  debt, 
170;  view  of,  as  to  right  of  Canal  Zone 
squatters,  175;  submits  North  At- 
lantic Fisheries  dispute  to  arbitration 
at  The  Hague,  177;  separation  of,  from 
Great  Britain  considered  by  Adams  a 
"division  of  empire,"  177;  convention 
with  Great  Britain  (1818),  180-82; 
Reciprocity  Treaty  with  Great  Britain 
(1854),  183;  extends  bonding  privi- 
lege to  Canada,  184;  Treaty  of  Wash- 
ington (1871)  with  Great  Britain, 
184;  fishing  liberty  of,  subject  to  rea- 
sonable regulation  by  Great  Britain, 
194;  right  of  inhabitants  of,  to  employ 
foreigners  on  fishing  vessels,  196;  ex- 
ercise of  fishing  liberties  of,  not  subject 
to  commercial  formalities,  197;  con- 
tention of,  as  to  territorial  waters, 
198;  fishing  vessels  of,  entitled  to  com- 
mercial privileges  on  treaty  coasts, 
202;  questions  Argentine  title  to  the 
Falklands,  211;  purchases  Alaska 
from  Russia,  218;  protest  of,  against 
ukase  of  Russia,  218;  legislation  of, 
on  protection  of  fur  seal,  219;  treaty 
with  Great  Britain  on  fur  seal  arbitra- 
tion (1892),  220;  claims  property  right 
in  fur  seal,  221;  decision  of  tribunal 
against  claim  of,  in  Behring  Sea  arbi- 
tration, 224;  armed  vessel  of  foreign 
power  not  subject  to  jurisdiction  of, 
230-42;  refuses  to  grant  asylum  on 
Spanish  warships,  242;  minister  of,  to 
Chile  grants  asylum  to  Congression- 
alists  at  Santiago,  243;  policing  of 
legation  of,  at  Santiago,  244;  Chilean 
refugees  on  board  warships  of,  245: 
mixed  commission  under  Treaty  of 


494 


INDEX 


1853  with  Great  Britain,  248;  vessel 
of,  in  foreign  port  by  necessity  not 
subject  to  local  law,  249-53;  jurisdic- 
tion of,  over  foreign  merchant  vessels 
in  U.S.  waters,  253-59;  jurisdiction 
of  Belgian  Consuls  in,  253;  presents 
claims  against  Venezuela  for  unjust 
arrest  of  citizens,  259-61;  claim  for 
death  of  British  subject  in,  262-64; 
responsibility  of,  for  lynching  of  Italian 
subjects  at  New  Orleans,  264-70; 
pays  indemnity  to  Italy  for  New 
Orleans  lynching,  270;  liability  of 
citizen  of,  to  military  service  in  Bata- 
via,  270;  discussion  with  Germany 
over  income  tax  on  citizen  of,  273-74; 
application  of  contract-labor  law  of, 
to  Greek  subject,  275;  admission  into, 
may  be  denied  to  domiciled  alien  on 
return  to,  276-80;  exclusion  of  crimi- 
nals from,  280-83;  rule  °f  reciprocity 
applied  by,  to  citizens  of  Guatemala, 
291;  restrictions  by  France  and  Ger- 
many on  pork  exports  from,  292-95; 
transit  of  Chinese  laborers  across, 
295;  early  claims  of,  to  navigation  of 
Mississippi,  296;  declaration  by  Koszta 
of  intention  to  become  citizen  of,  299; 
protection  extended  to  Koszta  by 
consuls  of,  in  Turkey,  299;  demand  of 
U.S.  commander  for  release  of  Koszta, 
300;  position  taken  by,  in  Koszta  case, 
301-11;  liability  of  naturalized  citizen 
of,  to  military  service  in  France,  311- 
14,  322-25;  claim  of,  to  right  of  ex- 
patriation, 320-22;  right  of  citizens 
of,  to  a  jury  de  medietate  lingiuz,  321; 
naturalization  convention  with  North 
German  Confederation,  321-25;  Alsop 
claim  against  Chile  pressed  by,  326- 
34;  asks  Portugal  for  extension  of 
time-limit  in  case  of  Delagoa  Bay 
Railway  Company,  339;  diplomatic 
intervention  of,  in  interests  of  Ameri- 
can shareholders,  339;  agrees  to  arbi- 
tration, 341;  award  in  favor  of,  348- 
49;  protection  by,  of  seamen  on  board 
American  vessels,  350-61;  action  of, 
in  case  of  seizure  of  the  Masonic  at 
Manila,  361-67;  contention  of,  re 
impressment,  368;  citizens  of,  exe- 
cuted by  Spanish  authorities,  369; 
demand  of,  on  Spain  for  reparation 
for  Virginius  affair,  369;  receives  in- 
demnity from  Spain,  370;  status  of 
American  women  married  to  Greek 
subjects,  374-75;  protest  of,  against 
personal  taxation  in  Turkey  of  natural- 
ized citizen  resident  in  U.S.,  375-77; 


agreement  of,  with  Great  Britain  re 
British  subjects  in  „  American  Navy, 
381;  extraterritorial  jurisdiction  of, 
in  Samoa,  383;  denies  claim  of  Mexico 
to  jurisdiction  over  offenses  com- 
mitted abroad,  386-89;  rule  of  reci- 
procity applied  by  Mexico  and,  with 
respect  to  cattle  on  border,  401;  ob- 
jection of,  to  emigration  to  U.S.  of 
Swiss  offenders,  401-02;  status  of 
deserting  German  seamen  in,  402-03; 
extradition  of  criminal  to,  by  Bulgaria 
as  act  of  grace  in  absence  of  treaty, 
403-08;  refusal  of  Roumania  to  allow 
transit  of  person  extradited  from  Bul- 
garia to,  407-08;  extradition  of  citizen 
to  Italy,  408-11;  extradition  treaty 
with  Italy,  409;  jurisdiction  of,  over 
Confederate  sailors  in  Morocco,  411- 
12;  controversy  with  Great  Britain 
over  interpretation  of  extradition 
treaty,  413-14,  416  n.\  tries  only  for 
offense  for  which  extradition  is  granted, 
413-16;  refusal  of  Germany  to  allow 
commissioners  of,  to  take  testimony, 
422-23;  vessel  of,  condemned  by 
British  court  for  engagement  in  slave 
trade,  430-31;  collision  of  American 
sailing  vessel  with  British  steamer  on 
high  seas,  432-35;  statutes  of,  do  not 
create  law  of  sea,  434;  rule  of  recipro- 
city applied  by  courts  of,  with  respect 
to  foreign  judgments,  436-39;  Cana- 
dian judgment  sustained  by  tribunal 
of,  438  «.;  protects  Jews  in  Persia, 
445;  views  of  government  of,  on  British 
jurisdiction  over  foreign  shipping, 
443-44;  sends  relief  to  victims  of 
Italian  earthquake,  446-49. 

United  States  v.  Rauscher:  413-16. 

Universal  Postal  Union:  451-54. 

University  of  Berlin:  faculty  of  law 
of,  gives  opinion  on  Zappa  affair, 

155- 

Usage:  exemption  of  fishing  vessels  from 
capture,  a  matter  of,  xxxii-xxxiii;  be- 
comes part  of  international  law,  xxxiv; 
consent  may  be  tested  by  common 
opinion,  growing  out  of,  232. 

Use  of  force:  see  case  of  Leased  Terri- 
tory in  China,  203  ff.;  Great  Britain 
takes  possession  of  Falk lands,  212; 
Marcy  sets  forth  right  of  Ingraham 
to  make,  to  protect  Koszta,  309; 
Marcy  shows  Ingraham  did  not  first 
make,  310;  Casablanca  tribunal  con- 
demns, by  France,  385. 

Utrecht,  Treaty  of:  French  fishing  rights 
under,  178. 


INDEX 


495 


Valorization  scheme:  of  Brazil,  159. 

Vattel:  on  extraterritoriality  of  diplo- 
matic officers,  238;  definition  of  domi- 
cile by,  306;  on  voidability  of  treaties, 
411. 

Venezuela:  U.S.  protects  citizens  of,  in 
France,  51;  award  in  John  H.  Williams 
claim  against,  55 ;  corruption  of  tribunal 
in  case  of  claims  of  the  U.S.  against 
(1866-90),  69;  case  of  Orinoco  Steam- 
ship Co.  against,  89;  threat  of  force 
by  French  cruiser  against,  107;  with- 
drawal of  diplomatic  representative 
of  U.S.  from,  108;  acts  of  de  facto  gov- 
ernment in,  not  to  be  questioned  in 
U.S.  courts,  156;  claims  against,  for 
unjust  arrest,  250-61;  responsibility 
of,  for  expulsion  of  Belgian  subject, 
290-91;  jurisdiction  over  Belgian 
claims  against,  325. 

Venezuelan  citizens  in  France,  protec- 
tion of:  51. 

Venice:  punishes  customs  officials  for 
offense  against  English  Ambassador,  5. 

Venosta,  Marquis:  arbitrator  in  Fur  Seal 
case,  221;  on  liability  of  Italians  for 
military  service,  324  n. 

Vessel:  fishing,  exemption  of,  from  cap- 
ture, xxxii-xxxvi;  exceptions  to  rule, 
xxxv;  French  Council  of  State  (1859), 
declares  local  authorities  competent 
to  exercise  jurisdiction  over  crew  in 
case  of  homicide  on,  258-39;  seizure 
of  American,  by  Spanish  authorities, 
361-67;  nationality  of,  extends  to 
seamen,  361;  crew,  protected  by  flag 
of,  361;  stress  of  weather  not  to  sub- 
ject American,  to  Spanish  customs 
law,  363;  registry  of,  as  determining 
right  to  fly  flag,  368-71;  jurisdiction 
over,  dependent  on  ownership  not  on 
registry,  371. 

Vessels:  seizure  of  Brazilian  merchant, 
by  British  as  reprisals,  40;  rights  of 
fishing,  to  engage  "non-inhabitants" 
under  Treaty  of  1818,  196;  public, 
immunity  of,  from  national  jurisdic- 
tion in  foreign  ports,  230  ff.;  in  dis- 
tress, have  a  right  to  refuge  in  foreign 
ports,  236;  decision  in  case  of  the  Sally 
denning  limits  of  jurisdiction  of  con- 
suls over  crews  and,  246  ff.;  jurisdic- 
tion over,  in  foreign  harbors,  392; 
right  to  retain  political  prisoners  on, 
in  foreign  harbors,  418;  foreign  applica- 
tion of  national  legislation  to,  440; 
foreign  regulation  against  overloading, 
439,  440;  foreign,  regulation  of,  ought 
to  be  tolerated  when  in  interest  of 


humanity,  442;  extraordinary  nature 
of  British  jurisdiction  over  foreign, 
commented  upon  by  U.S.,  443;  U.S. 
yields  tacit  acquiescence,  444;  foreign, 
British  regulation  of  leadline  of,  444. 

Vessels,  merchant:  246-59. 

Vessels,  nationality  and  protection  of: 
350-68. 

Vessels  flying  the  national  flag,  control 
over:  300-93. 

Vignaud,  U3.  Minister  at  Paris:  report 
of,  on  French  law  of  citizenship, 
323-24  n. 

"Vindictive  damages":  U.S.  informs 
Torrey  will  not  ask,  for  his  arrest,  260. 

Violation  of  territory:  investigation 
shows  there  was  no,  in  Schnaebele's 
arrest,  227. 

Violation  of  treaties:  see  Treaties. 

Virginius,  case  of  the:  368-71. 

Visit  and  search:  historic  attitude  of 
U.S.  regarding,  as  applied  to  sealing 
controversy,  223;  refusal  of  France  to 
admit  right  of,  with  respect  to  French 
vessels  in  slave  trade,  351;  right  of,  on 
high  seas  in  time  of  peace,  370. 

Waite,  Chief  Justice:  delivers  opinion 
in  Wildenhus  case,  254-59. 

Wai-wu  Pu:  instructs  Chinese  Minister 
to  thank  President  for  return  of  in- 
demnity, 119. 

War:  effect  of,  on  treaties,  149;  differ- 
ence in  regard  to  effects  of  War  of 
1812  upon  Treaty  of  1783,  179;  effect 
of,  on  postal  relations,  454. 

War-making  power:  Marcy  agrees  with 
view  of,  expressed  in  Austrian  note, 
310. 

War  on  land:  laws  and  customs  of,  con- 
vention concerning  (1899),  54. 

Warren  and  Costello  cases:  320-22. 

Warships:  extraterritoriality  of  (Ex- 
change), 230  ff.;  Spanish,  at  New  Or- 
leans, U.S.  does  not  recognize  asylum 
on,  242;  U.S.  Minister  accompanies 
refugees  on  board  the  Yorktoum,  245. 

Warships  and  armed  forces:  230-42. 

Webster,  U.S.  Secretary  of  State:  an- 
nounces closing  of  Caroline  incident 
(1842),  122;  admits  British  conten- 
tion in  McLcod  case,  123;  negotiations 
of,  with  Lord  Ashburton,  249;  on 
status  of  merchant  vessels  on  high 
seas,  368. 

Webstcr-Ashburton  Treaty:  413-16. 

Wei-hai-wei:  lease  of,  to  Great  Britain 
(1898),  206. 

Weil  and  La  Abra  cases:  75-81. 


496  INDEX 


West,  Sackville,  incident:  see  Sackville 
West,  10-16. 

Westlake:  on  custom  as  a  source  of  in- 
ternational law,  xxvii  n.;  on  reason, 
xxviii  n.;  on  Roman  law,  xxix  n.j  on 
development  of  new  rules  in  inter- 
national law,  153. 

Wheaton:  on  national  character,  309. 

White,  Andrew  D.,  American  Minister 
at  Berlin:  representations  of,  on  pork 
exports,  294. 

Whitworth,  Lord,  English  Ambassador 
at  Moscow:  special  instructions  dis- 
patched to,  on  occasion  of  outrage  on 
Mattueof,  5;  apologizes  to  Peter  the 
Great  in  Queen  Anne's  name,  6. 

Wicquefort:  xxxii;  opinion  of,  on  con- 
sular privileges,  21. 

Wildenhus  case:  253-59 

Will  of  the  parties:  at  time  of  signing, 
rule  for  interpretation  of  treaties,  144; 
history  of  negotiations  as  aid  to  dis- 
cover, 145. 

Williams,  John  H.,  claim:  55-57. 

Wilson,  George  G.:  course  on  Hague 
Arbitrations,  xvi  n. 

Wines:  U.S.  Secretary  of  Agriculture 
proposes  retaliatory  regulations  against 
foreign,  294. 

Winslow  case:  referred  to,  416  ». 


Withdrawal  of  diplomatic  representa- 
tives, 108-12;  between  France  and 
Holy  See  (1904),  17;  ceremony  of  re- 
newal of  relations  between  England 
and  Brazil,  42;  Greece  recalls  repre- 
sentative from  Bukharest,  155;  Italian 
Minister  withdraws  from  Washington 
"on  leave"  (New  Orleans  lynching), 
267. 

Witnesses:  diplomatic  representatives 
not  compelled  to  appear  as,  32. 

Wohlgemuth  affair:  137-49. 

Woolsey:  opinion  of,  in  case  of  the  Vir- 
ginius,  371. 

Words  and  phrases:  meaning  of,  in 
treaties,  indicated  by  purpose  of 
negotiators,  146;  interpretation  of  the 
word  originaire  in  Treaty  of  Frank- 
fort, 173;  "right"  and  "liberty"  as 
used  in  Peace  Treaty  of  1783,  178  ff. 

Young,  Jacob  and  Johanna,  case  of: 
Lord  Stowell's  judgment  in,  cited  in 
Paquete  Habana,  xxxiii. 

Zanzibar:  becomes  protectorate  of  Great 
Britain,  350;  subsidy  paid  by  Great 
Britain  to,  355;  blockade  of,  by  Eu- 
ropean powers  for  prevention  of  slave 
traffic,  430. 

Zappa  incident:  155. 


Sib 

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